<PAGE>
As filed with the Securities and Exchange Commission on February 29, 2000
Registration No. 333-96191
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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AMENDMENT NO. 2
TO
FORM F-1
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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IFCO Systems N.V.
(Exact name of Registrant as Specified in its Charter)
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The Netherlands 3089 98-0216429
(State or other (Primary Standard (I.R.S Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification Code
organization) Number)
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"Rivierstaete", Amsteldijk 166
1079 LH
Amsterdam, The Netherlands
31-20-504-1772
(Address and telephone number of Registrant's principal executive office)
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Silver Oak Acquisition Corp.
c/o Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
(Name, address and telephone number of agent for service)
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Copies to:
John D. Wilson Stephen M. Wiseman
Shearman & Sterling King & Spalding
Broadgate West 1185 Avenue of the Americas
9 Appold Street New York, New York 10036-4003
London EC2A 2AP England
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act or until the registration statement shall
become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The table below lists the fees and expenses, other than underwriting
discounts and commissions, which the registrant will pay in connection with the
offering described in this registration statement. All the expenses are
estimates, except for the SEC registration fee, the Netherlands Capital Tax,
the Nasdaq National Market listing fee, the NASD filing fee, and the Frankfurt
Stock Exchange listing fee.
<TABLE>
<CAPTION>
Amount
----------
<S> <C>
SEC registration fee................................................ $ 60,228
NASD filing fee..................................................... 18,944
Nasdaq National Market listing fee.................................. 80,625
Frankfurt Stock Exchange listing fee................................ 15,000
Netherlands Capital Tax............................................. 2,015,000
Legal fees and expenses............................................. 1,000,000
Accounting fees and expenses........................................ 750,000
Printing and engraving expenses..................................... 500,000
Transfer agent and registrar fees................................... 35,000
Miscellaneous expenses.............................................. 950,000
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Total............................................................... $5,424,797
==========
</TABLE>
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Item 14. Indemnification of Directors And Officers
IFCO Systems N.V. has agreed to indemnify each member of its board of
directors if, in the course of executing his or her duties, the member incurs
personal liability under civil laws, subject to the right of IFCO Systems to
recover payment from each such member to the extent permitted by applicable
law. IFCO Systems will also maintain an insurance policy with a third-party
carrier insuring members of the board of directors against the foregoing
liabilities.
Item 15. Recent Sales of Unregistered Securities
The following is a summary of transactions by IFCO Systems involving sales of
its securities that have not been registered under the Securities Act of 1933.
None of these transactions involved any underwriters, underwriting discounts or
commissions, or any public offering.
(1) On March 31, 1999, upon its incorporation, IFCO Systems issued 5,000
ordinary shares, 10 euros nominal value per share, to Schoeller Industries
for 50,000 euros.
(2) On November 3, 1999, pursuant to a purchase agreement between Schoeller
Industries and Schoeller Holding, Schoeller Industries sold and transferred
to IFCO Holding (formerly known as Avenue Verwaltungsgesellschaft mbH)
5,000 ordinary shares, 10 euros nominal value per share, for total
consideration of 50,000 euros.
(3) In connection with the merger and this offering:
(a) IFCO Systems will issue to Schoeller Holding 995,000 ordinary shares,
10 euros nominal value per share, in consideration for the contribution
to IFCO Systems of: (i) one share in the nominal amount of DM3,040,000 in
the capital of IFCO Europe, (ii) three shares in the nominal amount of
DM5,000, DM5,000, and DM40,000, respectively, in the capital of IFCO
International, and (iii) six shares in the nominal amount of DM11,300,
DM11,200, DM12,500, DM1,200, DM12,500, and DM1,300, respectively, in the
capital of MTS;
(b) IFCO Systems will issue to Schoeller Holding 250,000 ordinary shares,
10 euros nominal value per share, in consideration for one share in the
nominal amount of DM960,000 in the capital of IFCO Europe;
II-1
<PAGE>
(c) IFCO Systems will issue to Schoeller Holding 2,750,000 ordinary
shares, 10 euros nominal value per share, to be paid in cash from the
share premium reserve account;
(d) IFCO Systems will effect a 5-for-1 stock split of the IFCO Systems
ordinary shares resulting in a nominal value per share of 2 euros after
the stock split.
The issuances of the securities set forth in paragraphs 1 through 3 above
were deemed to be exempt from registration under the Securities Act in
reliance, unless otherwise indicated, on Section 4(2) of the Securities Act
and, in certain circumstances, Regulation D and Regulation S promulgated under
the Securities Act. The recipients of such securities represented their
intentions to acquire the securities for investment only and not with a view
to, or for sale in connection with, any distribution thereof and appropriate
legends were affixed to the certificates representing the securities issued in
such transactions.
Item 16. Exhibits And Financial Statement Schedules
(a) Exhibits.
<TABLE>
<C> <S>
*1.1 Form of Underwriting Agreement.
3.1 Articles of Association of IFCO Systems (English translation)
(incorporated by reference to Appendix D to the proxy
statement/prospectus filed as part of IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
4.1 Specimen Certificate of IFCO Systems ordinary shares (incorporated by
reference to Exhibit 4.1 to IFCO Systems' Registration Statement on Form
F-4, registration no. 333-96021).
*5.1 Opinion of Stibbe Simont Monahan Duhot P.C. as to the legality of the
IFCO Systems ordinary shares.
9.1 Voting Agreement dated as of October 6, 1999, and effective as of March
29, 1999, by and among PalEx and certain stockholders of PalEx
(incorporated by reference to Exhibit 9.1 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.1 Amended and Restated Agreement and Plan of Reorganization, dated as of
October 6, 1999 and effective as of March 29, 1999, by and among IFCO
Systems, IFCO Europe, MTS, IFCO International, Schoeller Industries,
Silver Oak and PalEx, as amended by Amendment No. 1 dated as of January
31, 2000 (incorporated by reference to Appendix A to the proxy
statement/prospectus filed as part of IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.2 Form of Lockup Agreement to be executed by Christoph Schoeller, Martin
Schoeller, Schoeller Industries, Schoeller Holding, and certain senior
executives of PalEx and its subsidiaries (incorporated by reference to
Exhibit 10.1 to IFCO Systems' Registration Statement on Form F-4,
registration no. 333-96021).
10.3 Form of Waiver to be entered by IFCO Systems and by certain employees of
PalEx (incorporated by reference to Exhibit 10.2 to IFCO Systems'
Registration Statement on Form F-4, registration no. 333-96021).
10.4 Senior Facility Agreement, dated February 20, 1998, between IFCO
International Food Container Organization GmbH, as Borrower, IFCO Europe,
and the Financial Institutions named therein (incorporated by reference
to Exhibit 10.3 to IFCO Systems' Registration Statement on Form F-4,
registration no. 333-96021).
10.5 Amendment to Senior Facility Agreement, dated February 28, 1998
(incorporated by reference to Exhibit 10.4 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
</TABLE>
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<TABLE>
<C> <S>
10.6 Senior Subordinated Facility Agreement, dated February 20, 1998, between
IFCO International Food Container Organization GmbH as Borrower, IFCO
Europe, and the Financial Institutions named therein (incorporated by
reference to Exhibit 10.5 to IFCO Systems' Registration Statement on
Form F-4, registration no. 333-96021).
10.7 Intercreditor Agreement, dated February 20, 1998, between BHF Bank AG as
Senior Agent and Security Trustee, Barclays Bank PLC as Senior
Subordinated Agent and the Financial Institutions named therein as
Initial Senior Lenders and Initial Senior Subordinated Lenders
(incorporated by reference to Exhibit 10.6 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.8 Security Trust Agreement, dated February 27, 1998, between BHF Bank AG
as Security Trustee and Senior Agent, IFCO International Food Container
Organization GmbH as Borrower, IFCO Europe, Barclays Bank PLC as Senior
Subordinated Agent, and the Financial Institutions named therein
(incorporated by reference to Exhibit 10.7 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.9 Option Release and IPO-Facilitation Agreement, dated May 27, 1999, by
and among, inter alia, Schoeller Industries, Schoeller Plast AG, GE
Capital, and GE Erste as amended by the Amendment of the Option Release
and IPO-Facilitation Agreement, dated January 31, 2000 (incorporated by
reference to Exhibit 10.8 to IFCO Systems' Registration Statement on
Form F-4, registration no. 333-96021).
10.10 Supply Agreement, dated November 4, 1997, between IFCO Europe and
Schoeller Plast Industries GmbH (assigned to Schoeller Plast AG)
(incorporated by reference to Exhibit 10.9 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.11 Membership Interest and Share Purchase Agreement, dated September 2,
1999, by and among, inter alia, Polymer International Corp., as seller,
and IFCO Systems, as purchaser (incorporated by
reference to Exhibit 10.10 to IFCO Systems' Registration statement on
Form F-4, registration
no. 333-96021).
10.12 Management Agreement, dated as of January 2, 1997, between Schoeller
Industries and IFCO Europe (incorporated by reference to Exhibit 10.11
to IFCO Systems' Registration Statement on Form F-4, registration no.
333-96021).
10.13 Management Agreement, dated as of January 2, 1997, between Schoeller
Industries and MTS (incorporated by reference to Exhibit 10.12 to IFCO
Systems' Registration Statement on Form F-4, registration no. 333-
96021).
10.14 Asset Purchase Agreement, dated as of February 12, 1998, by and among
PalEx, Container Services Company NW Acquisition, Inc., Container
Services Company SW Acquisition, Inc., Consolidated Drum Reconditioning
Co., Inc., CDRCo. HC, LLC, CDRCo. NW, LLC, CDRCo SW, LLC, Joseph Cruz,
and Philip Freeman (incorporated by reference to Exhibit 2.1 to PalEx's
Current Report on Form 8-K dated February 12, 1998, Commission file no.
000-22237, as filed with the SEC on February 27, 1998).
10.15 Acquisition Agreement and Plan of Reorganization, dated as of February
23, 1998, by and among PalEx, Acme Acquisition, Inc., Acme Barrel
Company, Inc., and the stockholders named therein (incorporated by
reference to Exhibit 2.2 to PalEx's Current Report on Form 8-K dated
February 12, 1998, Commission file no. 000-22237, as filed with the SEC
on February 27, 1998).
</TABLE>
<TABLE>
<S> <C>
10.16 Acquisition Agreement and Plan of Reorganization, dated as of February 23, 1998, by and among
PalEx, Acme Barrel Company, Inc., ESP Realty Corp., Inc., and the Elliot Pearlman Living Trust u/t/a
dated July 2, 1996 (incorporated by reference to Exhibit 2.3 to PalEx's Current Report on Form 8-K
dated February 12, 1998, Commission file no. 000-22237, as filed with the SEC on February 27, 1998).
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
10.17 Acquisition Agreement and Plan of Reorganization, dated as of February 23, 1998, by and among
PalEx, Western Container Acquisition, Inc., Environmental Recyclers of Colorado Inc., and the
individual optionees named therein (incorporated by reference to Exhibit 2.4 to PalEx's Current
Report on Form 8-K dated February 12, 1998, Commission file no. 000-22237, as filed with the SEC
on February 27, 1998).
10.18 Acquisition Agreement, dated as of February 23, 1998, by and among PalEx, Western Container
Acquisition, Inc., and Barton A. Kaminsky (incorporated by reference to Exhibit 2.5 to PalEx's
Current Report on Form 8-K dated February 12, 1998, Commission file no. 000-22237, as filed with
the SEC on February 27, 1998).
10.19 Share Purchase Agreement, dated as of September 11, 1998, by and among (a) PalEx, (b) 1313530
Ontario Inc., an Ontario corporation that is wholly owned by PalEx, and (c) 1271477 Ontario
Limited, Rollem Holdings Inc., 1271478 Ontario Limited, 1296288 Ontario Limited, Save On Pallets
Ltd., Pallet Management Services Inc., The David E. Turner Family Trust II, The David E. Turner
Family Trust III, The Enrico DiLello Family Trust II, The Enrico DiLello Family Trust III, The
Worden Teadsdale Family Trust, The Fraser Campbell Family Trust II, The Fraser Campbell Family
Trust III, The John F. Campbell Family Trust II, The John F. Campbell Family Trust, The Ronald
Doering Family Trust, Fraser Campbell, John F. Campbell, Enrice DiLello, Ronald Doering, Susan
Virginia Teadsdale, Worden Teadsdale, Clint Sharples, and David E. Turner (incorporated by reference
to Exhibit 2.1 to Palex's Current Report on Form 8-K dated September 11, 1998, Commission file
no. 000-22237, as filed on September 23, 1998).
10.20 Form of Employment and Noncompetition Agreement for Messrs. Maultsby, Rhyne, Fletcher, and
Fraser (the terms of each agreement are identical except for the level of compensation provided for
the respective individual) (incorporated by reference to Exhibit 10.4 to PalEx's Registration
Statement on Form S-1, registration no. 333-18683).
10.21 Form of Employment and Noncompetition Agreement for Messrs. Cruz and Freeman (incorporated by
reference to Exhibit 10.14 to PalEx's Annual Report on Form 10-K for the fiscal year ended
December 27, 1998, Commission file no. 000-22237, as filed with the SEC on March 30, 1999).
21 Subsidiaries of the Registrant (incorporated by reference to Exhibit 21 to IFCO Systems'
Registration Statement on Form F-4, registration no. 333-96021).
**23.1 Consent of PwC Deutshe Revision Aktiengesellschaft Wirtschaftsprufungsgesellschaft.
**23.2 Consent of Arthur Andersen LLP.
**23.3 Consent of PricewaterhouseCoopers LLP.
**23.4 Consent of Stibbe Simont Monahan Duhot (included as part of Exhibit 5.1).
**23.5 Consent of Cornelius Geber.
**23.6 Consent of Sam W. Humphreys.
**23.7 Consent of Randall Onstead.
**23.8 Consent of Eckhard Pfeiffer.
**23.9 Consent of Christoph Schoeller.
</TABLE>
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<TABLE>
<S> <C>
**23.10 Consent of Dr. Frank Tofflinger.
**24 Power of Attorney (included on signature page).
</TABLE>
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*Filed herewith.
**Filed previously.
(b) Financial Statement Schedules.
Not required.
(c) Reports, Opinions, Appraisals.
Not required.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering;
(4) to file a post-effective amendment to the registration statement to
include any financial statements required by Rule 3-19 of Regulation S-X
under the Securities Act of 1933 at the start of any delayed offering or
throughout a continuous offering.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, subject to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(c) The undersigned registrant hereby undertakes to provide to the
underwriter at the closing, as specified in the underwriting agreement,
certificates in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser.
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(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(e) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to Registration Statement on Form F-1 to
be signed on its behalf by the undersigned, thereunto duly authorized, in New
York, New York, on this 29th day of February, 2000.
IFCO SYSTEMS N.V.
/s/ Martin A. Schoeller
By: ___________________________
Martin A. Schoeller
Director and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to Registration Statement on Form F-1 has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Martin A. Schoeller Director and Chief February 29, 2000
______________________________________ Executive Officer
Martin A. Schoeller (principal executive
officer)
</TABLE>
<TABLE>
<S> <C> <C>
* Director and Chief February 29, 2000
______________________________________ Financial Officer
Dr. Willy von Becker (principal financial and
accounting officer)
Puglisi & Associates Authorized Representative
in the United States
February 29, 2000
*
By: _____________________________
Gregory F. Lavelle
Vice President
</TABLE>
/s/ Martin A. Schoeller
*By: ____________________________
Attorney-in-fact
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EXHIBIT INDEX
<TABLE>
<C> <S>
*1.1 Form of Underwriting Agreement.
3.1 Articles of Association of IFCO Systems (English translation)
(incorporated by reference to Appendix D to the proxy
statement/prospectus filed as part of IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
4.1 Specimen Certificate of IFCO Systems ordinary shares (incorporated by
reference to Exhibit 4.1 to IFCO Systems' Registration Statement on Form
F-4, registration no. 333-96021).
*5.1 Opinion of Stibbe Simont Monahan Duhot P.C. as to the legality of the
IFCO Systems ordinary shares.
9.1 Voting Agreement dated as of October 6, 1999, and effective as of March
29, 1999, by and among PalEx and certain stockholders of PalEx
(incorporated by reference to Exhibit 9.1 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.1 Amended and Restated Agreement and Plan of Reorganization, dated as of
October 6, 1999 and effective as of March 29, 1999, by and among IFCO
Systems, IFCO Europe, MTS, IFCO International, Schoeller Industries,
Silver Oak and PalEx, as amended by Amendment No. 1 dated as of January
31, 2000 (incorporated by reference to Appendix A to the proxy
statement/prospectus filed as part of IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.2 Form of Lockup Agreement to be executed by Christoph Schoeller, Martin
Schoeller, Schoeller Industries, Schoeller Holding, and certain senior
executives of PalEx and its subsidiaries (incorporated by reference to
Exhibit 10.1 to IFCO Systems' Registration Statement on Form F-4,
registration no. 333-96021).
10.3 Form of Waiver to be entered by IFCO Systems and by certain employees of
PalEx (incorporated by reference to Exhibit 10.2 to IFCO Systems'
Registration Statement on Form F-4, registration no. 333-96021).
10.4 Senior Facility Agreement, dated February 20, 1998, between IFCO
International Food Container Organization GmbH, as Borrower, IFCO Europe,
and the Financial Institutions named therein (incorporated by reference
to Exhibit 10.3 to IFCO Systems' Registration Statement on Form F-4,
registration no. 333-96021).
10.5 Amendment to Senior Facility Agreement, dated February 28, 1998
(incorporated by reference to Exhibit 10.4 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.6 Senior Subordinated Facility Agreement, dated February 20, 1998, between
IFCO International Food Container Organization GmbH as Borrower, IFCO
Europe, and the Financial Institutions named therein (incorporated by
reference to Exhibit 10.5 to IFCO Systems' Registration Statement on
Form F-4, registration no. 333-96021).
10.7 Intercreditor Agreement, dated February 20, 1998, between BHF Bank AG as
Senior Agent and Security Trustee, Barclays Bank PLC as Senior
Subordinated Agent and the Financial Institutions named therein as
Initial Senior Lenders and Initial Senior Subordinated Lenders
(incorporated by reference to Exhibit 10.6 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.8 Security Trust Agreement, dated February 27, 1998, between BHF Bank AG as
Security Trustee and Senior Agent, IFCO International Food Container
Organization GmbH as Borrower, IFCO Europe, Barclays Bank PLC as Senior
Subordinated Agent, and the Financial Institutions named therein
(incorporated by reference to Exhibit 10.7 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.9 Option Release and IPO-Facilitation Agreement, dated May 27, 1999, by and
among, inter alia, Schoeller Industries, Schoeller Plast AG, GE Capital,
and GE Erste as amended by the Amendment of the Option Release and IPO-
Facilitation Agreement, dated January 31, 2000 (incorporated by reference
to Exhibit 10.8 to IFCO Systems' Registration Statement on Form F-4,
registration no. 333-96021).
</TABLE>
1
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<TABLE>
<C> <S>
10.10 Supply Agreement, dated November 4, 1997, between IFCO Europe and
Schoeller Plast Industries GmbH (assigned to Schoeller Plast AG)
(incorporated by reference to Exhibit 10.9 to IFCO Systems' Registration
Statement on Form F-4, registration no. 333-96021).
10.11 Membership Interest and Share Purchase Agreement, dated September 2,
1999, by and among, inter alia, Polymer International Corp., as seller,
and IFCO Systems, as purchaser (incorporated by
reference to Exhibit 10.10 to IFCO Systems' Registration statement on
Form F-4, registration
no. 333-96021).
10.12 Management Agreement, dated as of January 2, 1997, between Schoeller
Industries and IFCO Europe (incorporated by reference to Exhibit 10.11
to IFCO Systems' Registration Statement on Form F-4, registration no.
333-96021).
10.13 Management Agreement, dated as of January 2, 1997, between Schoeller
Industries and MTS (incorporated by reference to Exhibit 10.12 to IFCO
Systems' Registration Statement on Form F-4, registration no. 333-
96021).
10.14 Asset Purchase Agreement, dated as of February 12, 1998, by and among
PalEx, Container Services Company NW Acquisition, Inc., Container
Services Company SW Acquisition, Inc., Consolidated Drum Reconditioning
Co., Inc., CDRCo. HC, LLC, CDRCo. NW, LLC, CDRCo SW, LLC, Joseph Cruz,
and Philip Freeman (incorporated by reference to Exhibit 2.1 to PalEx's
Current Report on Form 8-K dated February 12, 1998, Commission file no.
000-22237, as filed with the SEC on February 27, 1998).
10.15 Acquisition Agreement and Plan of Reorganization, dated as of February
23, 1998, by and among PalEx, Acme Acquisition, Inc., Acme Barrel
Company, Inc., and the stockholders named therein (incorporated by
reference to Exhibit 2.2 to PalEx's Current Report on Form 8-K dated
February 12, 1998, Commission file no. 000-22237, as filed with the SEC
on February 27, 1998).
10.16 Acquisition Agreement and Plan of Reorganization, dated as of February
23, 1998, by and among PalEx, Acme Barrel Company, Inc., ESP Realty
Corp., Inc., and the Elliot Pearlman Living Trust u/t/a
dated July 2, 1996 (incorporated by reference to Exhibit 2.3 to PalEx's
Current Report on Form 8-K
dated February 12, 1998, Commission file no. 000-22237, as filed with
the SEC on February 27, 1998).
10.17 Acquisition Agreement and Plan of Reorganization, dated as of February
23, 1998, by and among PalEx, Western Container Acquisition, Inc.,
Environmental Recyclers of Colorado Inc., and the
individual optionees named therein (incorporated by reference to Exhibit
2.4 to PalEx's Current Report on Form 8-K dated February 12, 1998,
Commission file no. 000-22237, as filed with the SEC
on February 27, 1998).
10.18 Acquisition Agreement, dated as of February 23, 1998, by and among
PalEx, Western Container Acquisition, Inc., and Barton A. Kaminsky
(incorporated by reference to Exhibit 2.5 to PalEx's
Current Report on Form 8-K dated February 12, 1998, Commission file no.
000-22237, as filed with the SEC on February 27, 1998).
10.19 Share Purchase Agreement, dated as of September 11, 1998, by and among
(a) PalEx, (b) 1313530 Ontario Inc., an Ontario corporation that is
wholly owned by PalEx, and (c) 1271477 Ontario
Limited, Rollem Holdings Inc., 1271478 Ontario Limited, 1296288 Ontario
Limited, Save On Pallets Ltd., Pallet Management Services Inc., The
David E. Turner Family Trust II, The David E. Turner
Family Trust III, The Enrico DiLello Family Trust II, The Enrico DiLello
Family Trust III, The Worden Teadsdale Family Trust, The Fraser Campbell
Family Trust II, The Fraser Campbell Family Trust III, The John F.
Campbell Family Trust II, The John F. Campbell Family Trust, The Ronald
Doering Family Trust, Fraser Campbell, John F. Campbell, Enrice DiLello,
Ronald Doering, Susan Virginia Teadsdale, Worden Teadsdale, Clint
Sharples, and David E. Turner (incorporated by reference
to Exhibit 2.1 to Palex's Current Report on Form 8-K dated September 11,
1998, Commission file no. 000-22237, as filed on September 23, 1998).
</TABLE>
2
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<TABLE>
<S> <C>
10.20 Form of Employment and Noncompetition Agreement for Messrs. Maultsby, Rhyne, Fletcher, and
Fraser (the terms of each agreement are identical except for the level of compensation provided for
the respective individual) (incorporated by reference to Exhibit 10.4 to PalEx's Registration
Statement on Form S-1, registration no. 333-18683).
10.21 Form of Employment and Noncompetition Agreement for Messrs. Cruz and Freeman (incorporated by
reference to Exhibit 10.14 to PalEx's Annual Report on Form 10-K for the fiscal year ended
December 27, 1998, Commission file no. 000-22237, as filed with the SEC on March 30, 1999).
21 Subsidiaries of the Registrant (incorporated by reference to Exhibit 21 to IFCO Systems'
Registration Statement on Form F-4, registration no. 333-96021).
**23.1 Consent of PwC Deutshe Revision Aktiengesellschaft Wirtschaftsprufungsgesellschaft.
**23.2 Consent of Arthur Andersen LLP.
**23.3 Consent of PricewaterhouseCoopers LLP.
**23.4 Consent of Stibbe Simont Monahan Duhot (included as part of Exhibit 5.1).
**23.5 Consent of Cornelius Geber.
**23.6 Consent of Sam W. Humphreys.
**23.7 Consent of Randall Onstead.
**23.8 Consent of Eckhard Pfeiffer.
**23.9 Consent of Christoph Schoeller.
**23.10 Consent of Dr. Frank Tofflinger.
**24 Power of Attorney (included on signature page).
</TABLE>
- --------
*Filed herewith.
**Filed previously.
3
<PAGE>
IFCO Systems N.V.
Global Offer
of [13,000,000] Shares
UNDERWRITING AGREEMENT
March , 2000
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C> <C>
RECITALS.................................................................................................... 3
Article 1 Subscription, Sale and Purchase of New Shares........................................ 5
Article 2 Determination of Price and Allocation; Delivery and Payment.......................... 5
Article 3 Overallotment Option; Additional Shares.............................................. 6
Article 4 Representations and Warranties of the Company........................................ 7
Article 5 Undertakings of the Company.......................................................... 14
Article 6 Selling Restrictions................................................................. 17
Article 7 Commissions and Costs................................................................ 18
Article 8 Conditions to the Managers' Obligations with respect to the Main
Placement; Rescission................................................................ 19
Article 9 Conditions to the Managers' Obligations with respect to the Overallotment
Option............................................................................... 21
Article 10 Indemnification...................................................................... 22
Article 11 Material Adverse Change.............................................................. 24
Article 12 Default by One or More of the Managers............................................... 25
Article 13 Communications....................................................................... 26
Article 14 Statements or Communications, (S) 181 BGB............................................ 26
Article 15 Amendments to Agreement.............................................................. 27
Article 16 Severability......................................................................... 27
Article 17 Miscellaneous........................................................................ 27
List of Schedules........................................................................................... 30
</TABLE>
<PAGE>
UNDERWRITING AGREEMENT DATED MARCH, 2000
among
(1) IFCO Systems N.V., Amsterdam, The Netherlands (hereinafter the "Company"),
(2) Lehman Brothers International (Europe) (hereinafter "Lehman Brothers",
"Lead Manager" or "Global Bookrunner"), and
(3) the other financial institutions set forth in Schedule 1 hereto (the Lead
----------
Manager, the Bookrunner of the German Offering and such financial institutions
are collectively referred to as the "Managers," the other financial institutions
(including the Bookrunner of the German Offering) without the Lead Manager are
referred to as the "Other Managers").
The Lead Manager acts in its own name and also on behalf of the Other
Managers.
RECITALS
--------
(A) The Company is a public limited liability company (naamloze vennootschap)
incorporated under the laws of The Netherlands and registered under docket
number 34113177 under the name "IFCO Systems N.V." in the commercial register at
the Chamber of Commerce in Amsterdam, The Netherlands (hereinafter the
"Commercial Register"). As of the date hereof, the share capital of the Company
as registered in the Commercial Register is euro 300 million. Pursuant to
Article 4 of the Company's articles of association (hereinafter the "Articles of
Association"), the share capital of the Company consists of 100,000,000 ordinary
registered shares with a nominal value of euro 2.00 each and 50,000,000
preference shares (together with any ordinary registered shares with a nominal
value of euro 2.00 each issued from time to time, the "Shares"). The Shares that
are outstanding prior to the issuance of the Shares to be sold by the Company
pursuant to this Agreement are validly issued and fully paid.
(B) Pursuant to Article 29 of the Articles of Association, the board of
directors of the Company (the "Board") is authorized to increase the share
capital of the Company until February 1, 2005, by issuing up to 50,000,000 new
ordinary shares and 50,000,000 new preference shares with an aggregate nominal
value of up to euro 200,000,000 against contributions in cash (the "Authorized
Capital").
(C) On , 2000, the shareholders meeting of the Company resolved to increase the
issued share capital of the Company by an amount of euro 26,000,000 from euro to
euro by issuing [13,000,000] Shares with full dividend entitlement for the
fiscal year 2000 (hereinafter the "New Shares"). The Lead Manager proposes to
subscribe for the New Shares on March 3, 2000.
(D) In addition, the Company intends to issue up to [1,950,000] additional
Shares (hereinafter the "Additional Shares"), to the extent the Lead Manager has
exercised the right to purchase such Shares granted in Article 3 hereof. The New
Shares and the Additional
<PAGE>
Shares are hereinafter collectively referred to as the "Offered Shares."
(E) The Offered Shares will be offered (i) publicly in the United States of
America (the "United States") to United States Persons, (ii) publicly in Germany
to institutional and retail investors, and (iii) in the rest of the world
(excluding the United States and Germany) in private placements to institutional
investors pursuant to Regulation S of the Securities Act of 1933, as amended
(the "Securities Act").
(F) In connection with the sale of the Offered Shares, the Company has prepared
an English language preliminary sales prospectus with certain German language
pages for approval purposes of the Frankfurt Stock Exchange (the "German
Preliminary Prospectus") and will prepare a final English language sales and
listing prospectus (the "German Final Prospectus"), each relating to the Shares
to be offered in the German Offering (as defined below). In addition, the
Company has prepared a German language translation of the German Preliminary
Prospectus (the "Unvollstandiger Verkaufsprospekt") and will prepare a German
language translation of the German Final Prospectus (the "Verkaufsprospekt/
Borsenzulassungsprospekt"). In addition, the Company has filed a registration
statement on Form F-1 (containing a prospectus) with respect to the offering of
the Offered Shares in the United States (each as defined in Article 4 (1)). The
German Preliminary Prospectus, the Unvollstandiger Verkaufsprospekt and the
Preliminary Prospectus (as defined in Article 4 (1)) are hereinafter referred to
as "Preliminary Offer Documents", and the German Final Prospectus, the
Verkaufsprospekt/ Borsenzulassungsprospekt and the Registration Statement
(including the Final Prospectus, as defined in Article 4 (1)) are hereinafter
referred to as the "Final Offer Documents." The Preliminary Offer Documents and
the Final Offer Documents are hereinafter referred to as the "Offer Documents,"
provided that for purposes of the representations and warranties, the Offer
Documents are only those documents available at the time when the respective
representations and warranties are given.
(G) The price at which the Offered Shares shall be offered for sale to
investors (the "Offer Price") shall be determined by way of bookbuilding.
<PAGE>
Article 1
Subscription, Sale and Purchase of New Shares
On the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth:
(1) Lehman Brothers agrees to subscribe in its own name and for the account of
the Managers the New Shares at an amount per New Share equal to euro 2.00
(the "Issue Price") on March 3, 2000 (the "Issue Date"). Subject to the
execution of the deed of amendment, Lehman Brothers hereby agrees to sell
to the Other Managers, and the Other Managers hereby agree to purchase from
Lehman Brothers, such Shares with effect from the Issue Date in the amounts
set out opposite the Other Managers' names in Schedule 1 hereto at the
Offer Price. Any liability of Lehman Brothers towards the Other Managers in
respect of any defects of the New Shares shall be excluded.
(2) For value on the Issue Date, Lehman Brothers will credit the Issue Price of
the New Shares subscribed by it to a special account of the Company at
Lehman Brothers entitled "IFCO Systems N.V. - Sonderkonto Kapitalerhohung
1999" (the "Capital Increase Account"). Neither Lehman Brothers nor the
Company shall be obliged to pay fees or interest on this account.
(3) The Company shall execute a notarial deed of amendment of the Articles of
Association effecting the issuance of the New Shares on the issue date.
(4) Promptly upon execution of the deed of amendment, the Company shall,
furnish Lehman Brothers per telefax with evidence for the issuance of the
New Shares.
(5) Immediately upon the execution of the deed of amendment of the New Shares,
the Company shall deliver to Lehman Brothers one or more global share
certificates in respect of the New Shares, registered in such names as
Lehman Brothers may request. At the time of delivery, the New Shares shall
be in all respects fungible with the existing Shares of the Company.
(6) The Managers undertake, subject to the terms and conditions of this
Agreement, to offer the Shares to investors at the Offer Price.
(7) The Company shall not be obligated to deliver any of the Shares to be
delivered on the Issue Date except upon payment of the Issue Price for all
the Shares to be subscribed on the Issue Date as provided herein.
Article 2
Determination of Price and Allocation; Delivery and Payment
-----------------------------------------------------------
(1) After completion of the bookbuilding, the Offer Price shall be, with the
consent of the Company and the Lead Manager, evidenced in a pricing
agreement essentially in the form attached hereto as Schedule 2 (the
----------
"Pricing Agreement") on March 3, 2000. Allocation of the Offered Shares
will be made by the Lead Manager, after consultation with the Company.
<PAGE>
(2) Each Manager shall, subject to the provisions set out in Article 8 and in
Article 12, cause payment of the Offer Price for the Offered Shares to be
purchased by it to such accounts as designated by the Lead Manager.
(3) The Lead Manager shall, subject to the allocation, transfer the Offered
Shares subscribed by it to the Other Managers against payment of the Offer
Price. Each of the Other Managers is obligated to accept from the Lead
Manager Shares up to the amount set forth in Schedule 1 opposite the name
----------
of such Other Manager against payment of the Offer Price. Any liability of
the Lead Manager in respect of any defects (Mangel) of the Shares is
excluded. The delivery of the Offered Shares to the Other Managers or to
investors, as the case may be, and payment of the Offer Price per Offered
Share by the investors or by the Other Managers, as the case may be, to the
Lead Manager, is expected to take place on March 8, 2000 (hereinafter the
"Closing Date").
(4) Subject to the conditions as set out in Article 8 and in Article 12, on the
Closing Date, the Lead Manager shall pay to the Company the aggregate Offer
Price in immediately available funds in [currency], less the aggregate
Issue Price and commissions and costs pursuant to Article 7.
(5) Payment for any Additional Shares to be issued pursuant to Article 3 shall
be made in immediately available funds to the account of the Company in an
amount equal to the Offer Price multiplied by the number of Additional
Shares issued by the Company less the amount of the commissions and costs
owed to the Managers pursuant to Article 7, on the date specified in the
notice described in Article 3(2) or on such other date, in any event not
later than the date specified in Article 3 as the date by which the option
must be exercised, as shall be notified in writing by the Lead Manager. The
time and date of such payments are hereinafter referred to as the
"Greenshoe Closing Date."
(6) Lehman Brothers will cause the respective number of Shares to be
transferred to the accounts of the other Managers with (a) The Depository
Trust Company ("DTC"), (b) Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("Euroclear"), and
Clearstream Banking, societe anonyme ("Clearstream") and (c) to such other
accounts the Other Managers may so designate.
(7) The Managers shall be neither joint debtors nor joint creditors, there
shall be no joint or fractional ownership (Gesamthandseigentum und
Miteigentum nach Bruchteilen) among the Managers.
Article 3
Overallotment Option; Additional Shares
---------------------------------------
(1) Solely to cover overallotments, if any, the Lead Manager on behalf of the
Managers shall have a one-time right to purchase up to [1,950,000]
Additional Shares and, in connection therewith, to require the Company to
perform a further increase of its share capital against cash contributions
(the "Greenshoe Capital Increase"), which right may be exercised by the
Lead Manager by no later than 30 days after the Closing
<PAGE>
Date.
(2) For the purpose of effecting the Greenshoe Capital Increase, Lehman
Brothers shall deliver to the Company in its own name and for the account
of the Managers a notice setting forth the number of Additional Shares to
be subscribed, and thereupon the Company and Lehman Brothers shall prior to
10.00 a.m on the second business day following the delivery of such notice
("the Greenshoe Closing Date") execute the deed of amendment for the
issuance to Lehman Brothers of the Additional Shares.
(3) Promptly upon execution of the deed of amendment, the Company shall,
furnish the Managers per telefax with evidence for the issuance of the
Additional Shares.
(4) Immediately upon the execution of the deed of amendment of the Additional
Shares, the Company shall deliver to Lehman Brothers one or more global
share certificates in respect of the Additional Shares registered in such
names as Lehman Brothers may request. At the time of delivery, the
Additional Shares shall be in all respects fungible with the existing
Shares of the Company.
Article 4
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to the Managers as of the date hereof and as
of the Closing Date, as follows:
(1) A registration statement on Form F-1 with respect to the Offered Shares has
(i) been prepared by the Company in conformity with the requirements of the
Securities Act and the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") thereunder,
(ii) been filed with the Commission under the Securities Act and (iii)
become effective under the Securities Act. The registration statement
contains a prospectus to be used in connection with the offering and sale
of the Offered Shares. Copies of such registration statement and each of
the amendments thereto have been delivered by the Company to the Lead
Manager. As used in this Agreement, "Effective Time" means the date and
the time as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means the prospectus included in the registration
statement, or amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission by the Company
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the Effective
Time, including all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations
and deemed to be a part of the registration statement as of the Effective
Time pursuant to Rule 430A of the Rules and Regulations; and "Final
Prospectus" means the prospectus in the form first used to confirm sales of
Offered Shares. The Preliminary Prospectus and the Final Prospectus are
collectively referred to as the "Prospectus". The Commission has not
issued any order preventing or suspending the use of any Preliminary
Prospectus.
<PAGE>
(2) The merger (the "Merger") between and Affiliate of the Company (namely,
Silver Oak Acquisition Corp, a Delaware Corporation) and PalEx, Inc.
("PalEx") was duly authorized by the stockholders of the Company, will have
been consummated on the Closing Date in accordance with the Amended and
Restated Agreement and Plan of Reorganization dated as of October 6, 1999,
as amended by Amendment No. 1 thereto dated as of January 31, 2000 by and
among the Company, PalEx and certain other parties named therein, and all
consents, approvals, authorizations, notifications or orders of, or filings
with, any court or governmental agency or body in connection with the
Merger will have been obtained and are in full force and effect on the
Closing Date.
When it became effective, the registration statement on Form F-4 used in
connection with the Merger did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(3) The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus
will, when they become effective or are filed with the Commission, as the
case may be, conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not, as of
the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(4) The statements in the recitals under (A), (B) and (C) of this Agreement are
correct. The Company has authorized, issued and outstanding capital as set
forth in the Offer Documents. The Offered Shares and their associated
rights conform in all material respects to the descriptions thereof under
the caption "Description of IFCO Systems Share Capital" contained in the
Prospectus. The Offered Shares have equal rights and shall be fungible. All
of the issued and outstanding Shares of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable. On or
before the Closing Date and on the Greenshoe Closing Date, the Offered
Shares will be approved for trading on the Amtlicher Handel SMAX segment of
the Frankfurt Stock Exchange and the Nasdaq National Market. For the
purpose of this Agreement, except as otherwise defined, "Affiliate" shall
have the meaning set forth under the heading "Significant Subsidiary" in
Rule 1-02 of Regulation S-X.
(5) The Board and the general meeting of shareholders of the Company have taken
all necessary corporate or other action to authorize the global offering of
the Offered Shares, the execution of this Agreement and the performance of
its obligations hereunder by the Company. All required corporate
resolutions have been passed, are valid and are not challenged
(Anfechtung). After execution, this Agreement will constitute a binding
obligation of the Company, enforceable against it in accordance with its
terms.
The execution and delivery of this Agreement by the Company and the
consummation of the transactions contemplated in this Agreement will not
(a) violate the Articles of Association of the Company or any of its
Affiliates or result in a breach of or a default
<PAGE>
under any material agreement or other instruments or agreements to which
the Company or any of its Affiliates is a party, including the offering by
the Company of % Senior Subordinated Notes Due 2010 (the "Notes"), the
guarantee by PalEx or Silver Oak, as the case may be, of the Company's
obligations under the Notes, the execution by PalEx or Silver Oak, as the
case may be, of a new senior credit facility (the "New Senior Credit
Facility"), and the Company's guarantee of PalEx's obligations under the
New Senior Credit Facility as described in the Prospectus under the caption
"Concurrent Transactions"(collectively, the "Concurrent Transactions") or
(b) conflict with or violate any statute, rule or regulation applicable to
the Company or any of its Affiliates that would have a Material Adverse
Effect on the Company and its Affiliates, taken as a whole, or, a decree of
any governmental agency or court, or (c) interfere with the consummation of
the transactions contemplated herein.
No consent, approval, authorization, decree, registration or licence is
required from any court or governmental agency for the performance by the
Company of its obligations hereunder except for the registration of the
capital increase relating to the Shares in the Commercial Register, the
admission for listing at the Frankfurt Stock Exchange, the registration of
the Offered Shares under the Securities Act, the approval for listing the
shares on the Nasdaq National Market, the dispensation from the Securities
Board of the Netherlands ("Stichting Toezicht Effectenverkeer") under
applicable securities laws of the Netherlands and such other consent,
approval, authorization, decree, registration or licence as required by the
securities laws or other laws of any other jurisdiction outside the United
States, Germany and the Netherlands, all of which have been obtained or
the failure of which would not have a Material Adverse Effect on the
Company and its Affiliates, taken as a whole, or would not interfere with
the consummation of the transactions contemplated herein. For the purpose
of this Agreement, "Material Adverse Effect" means any material adverse
change, or any development reasonably likely to result in a prospective
material adverse change, in (a) the financial condition, or in the
earnings, business activity or business prospects or in the basis of the
conduct of the business of the IFCO Systems Group (as defined below) or of
the Company and its Affiliates, taken as a whole, as the case may be,
whether or not arising in the ordinary course of business, or (b) its
ability to perform its obligations in part or in whole hereunder and will
not interfere with the consummation of the transactions contemplated
hereby.
(6) The performance by the Company of its obligations under the Concurrent
Transactions will not (a) violate the Articles of Association of the
Company or any of its Affiliates or result in a breach of or a default
under any material agreement or other instruments or agreements to which
the Company or any of its Affiliates is a party, including the Concurrent
Transactions or (b) conflict with or violate any statute, rule or
regulation applicable to the Company or any of its Affiliates that would
have a Material Adverse Effect on the Company and its Affiliates, taken as
a whole, or, a decree of any governmental agency or court, or (c) interfere
with the consummation of the transactions contemplated herein.
(7) The Concurrent Transactions have been duly authorized by the Company, on
the Closing Date will have been properly consummated, and, on the Closing
Date, all consents, approvals, authorizations, notifications or orders of,
or filings with, any court or governmental agency or body in connection
with the Concurrent Transactions will have been obtained or made and will
be in full force and effect, except for such
<PAGE>
filings as would not have a Material Adverse Effect on the Company and its
Affiliates, taken as a whole.
(8) The Company is a public limited liability company ("naamloze vennootschap")
duly organized and validly existing under the laws of The Netherlands, has
the corporate power and authority to own its property and to conduct its
business as described in each of the Offer Documents and is duly qualified
to transact business in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
would not have a Material Adverse Effect on the Company and its Affiliates,
taken as a whole.
(9) The resolution dated , 2000 of the general meeting of shareholders' of the
Company (the "Shareholders' Consent") to increase the Company's share
capital, is valid and no actions have been brought to challenge (anfechten)
[Dutch equivalent?] such resolution. The amendments to the Articles of
Association have been registered in the Commercial Register on February 23,
2000.
(10) Each Affiliate of the Company has been duly incorporated or formed, as
applicable, is validly existing under the laws of the jurisdiction of its
incorporation or formation, has the corporate power and authority to own
its property and to conduct its business as described in each of the Offer
Documents and is duly qualified to transact business in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified would not have a Material Adverse Effect on the Company
and its Affiliates, taken as a whole; all of the issued capital of each
Affiliate of the Company has been duly and validly authorized and issued,
is fully paid and non-assessable and, except as set forth herein or in each
Offer Document, is owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims of third parties.
(11) The Offered Shares are not subject to any shareholder rights similar to
preemptive rights as provided in the Articles of Association or other
corporate documents, Dutch law, agreements or instruments to which the
Company is a party and are free of any right of pledge ("pand") or usufruct
("vruchtgebruik") or any other charge ("last of beperkh").
(12) Except as described in the Offer Documents, there are no restrictions on
transfer or voting of any of the Offered Shares of the Company pursuant to
the Company's Articles of Association, or under Dutch law, or any agreement
to which the Company is a party or by which the Company may be bound or to
which any of the Company's property may be subject. Under applicable law
and other regulation, no authorizations, approvals, consents or licenses of
any governmental authority or regulatory body or agency ("Authorizations")
are required to be obtained by the Company to effect dividend payments
declared and payable on, or in respect of, the Offered Shares.
(13) Except as set forth herein or in the Offer Documents, the Company has not
issued any options, warrants, other instruments in issue or entered any
other agreements which evidence rights of the respective holder against the
Company to subscribe for or to require the Company to issue or sell Shares
or any securities similar to the Shares.
<PAGE>
The Company has not granted any rights, other than as disclosed in the
Offer Documents, that give rise to a liability of the Company to issue any
Shares.
(14) Each of the Offer Documents, as of their respective dates, did not and does
not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(15) The financial statements and other financial information of the Company,
PalEx and the former IFCO group, as existing prior to the Merger (the "IFCO
Group"), as included in the Offer Documents, present fairly, in all
material respects, the financial position and results of operations of the
IFCO Systems Group (including the Company, the IFCO Group, PalEx Inc. and
all other consolidated subsidiaries of the Company after effectiveness of
the Merger), hereinafter the "IFCO Systems Group", respectively, at the
dates or for the periods indicated.
(16) Such financial statements as set out under (14) above were prepared in
accordance with generally accepted accounting principles in the U.S.
("U.S. GAAP"), except as otherwise disclosed in the Offer Documents. The
information included in the Offer Documents under the captions "Selected
Consolidated Financial Data" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" present fairly the
information shown therein and have been compiled on a basis consistent with
such financial statements and the books and records of the Company, PalEx
and the IFCO Group, as the case may be.
(17) The Company and each of its subsidiaries have good and marketable title in
fee simple to all real property and marketable title to all personal
property owned by them which is material to the business of the Company and
its subsidiaries, in each case free and clear of all liens, encumbrances
and defects, except such as are described in the Offer Documents or as are
not material to the Company and its Affiliates taken as a whole and do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and all assets held under
lease by the Company and its Affiliates are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(18) PwC Deutsche Revision AG, who has certified certain financial statements of
the Company and the IFCO Group, and Arthur Andersen LLP, who has certified
certain financial statements of PalEx and both of whose reports appear in
the Prospectus and both of whom have delivered one of the initial letters
referred to in Article 8(b)(ix) hereof, are independent public accountants
as required by the Securities Act and the Rules and Regulations.
(19) The Company and its Affiliates own or possess as licensee, or can readily
acquire on reasonable terms, the material copyrights, patents, trademarks,
licences, and other know-how, as used in their current business affairs as
described in the Offer Documents (the "Business Affairs"), except where the
failure to own or possess or have the right to acquire would not have a
Material Adverse Effect on the Company and its Affiliates, taken as a
whole, and have no reason to believe that the conduct of
<PAGE>
their Business Affairs conflicts with any such rights of others.
(20) The Company and each of its Affiliates have obtained all necessary material
authorizations, consents, approvals, licences and permits of and from all
supranational, national, provincial and other governmental authorities (in
The Netherlands and the United States and all other relevant countries)
except where the non-existence of such authorizations, consents, approvals,
licenses and permits would not have a Material Adverse Effect on the
Company and its Affiliates, taken as a whole. The Company and its
Affiliates have fulfilled and performed their obligations with respect
thereto, except for where a violation of such obligations would not have a
Material Adverse Effect and the Company has no knowledge that any
proceeding to withdraw or amend such authorizations, consents, approvals,
licences and permits is pending or imminent (except as disclosed in the
Offer Documents), which, in the case of an adverse decision, decree or
declaration, be it separately or taken as a whole, would have a Material
Adverse Effect.
(21) By conducting their Business Affairs, the Company and its Affiliates are
not in violation of any provision or governmental decree relating to trade
law, zoning law, laws concerning the occupiers of adjoining property, trade
regulation, competition law, the Criminal Code of Germany and other
comparable laws in other jurisdiction, in which the Company and its
Affiliates are engaged in their Business Affairs, except where such
violation would not have a Material Adverse Effect.
(22) Except as disclosed in the Offer Documents, there are no legal disputes,
arbitration, administrative proceedings or investigations or other out-of-
court proceedings pending or, to the knowledge of the Company, threatened
to which the Company or any of its subsidiaries is a party, which, if
determined adversely to the Company or any of its subsidiaries, would have
separately, or taken as a whole, a Material Adverse Effect.
(23) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement.
(24) No relationship, direct or indirect, exists between or among the Company on
the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(25) Since the respective dates of the information in the Offer Documents,
except as set forth therein, there has not been any fact or development
that has, or would reasonably be expected to, result in a Material Adverse
Effect, and the Business Affairs have been carried on within their usual
scope and there have been no transactions (Geschaftsvorgange) that would
reasonably be expected to result in a Material Adverse Effect.
(26) No labor disputes or stoppages of work exist relating to the Company or its
Affiliates or, to the knowledge of the Company, are threatened, which, if
adversely terminated, executed or consummated, would reasonably be expected
to have a Material Adverse Effect.
<PAGE>
(27) The Company is not, and after giving effect to the offering and sale of the
Offered Shares, will not be an "investment company" as such term is defined
in the United States Investment Company Act of 1940, as amended.
(28) The Company and its Affiliates are not (a) in violation of their respective
Articles of Association or in breach of or (b) in default under any
obligation, agreement, covenant or condition contained in any contract,
other instrument, agreement or other legal relationship, to which the
Company or any of its Affiliates is a party except where such violation or
default would not have a Material Adverse Effect.
(29) Except as disclosed in the Offer Documents, there has been no storage,
disposal, generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the knowledge
of the Company, any of their predecessors in interest) at, upon or from any
of the property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or would not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or
would not be reasonably likely to have, singularly or in the aggregate with
all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(30) The Company and its subsidiaries are insured by insurers of recognised
financial responsibility against such losses and risks and in such amounts
as are prudent and customary in the business in which they operate.
(31) Neither the Company nor any Affiliate (for the purposes of this paragraph
as defined in Rule 405 under the Securities Act) has taken, directly or
indirectly, any action to facilitate the sale or resale of the Offered
Shares through stabilization or manipulation of the price of any security
of the Company or any of its Affiliates.
(32) The Company maintains internal accounting controls sufficient to provide
reasonable assurance that (i) all material transactions are executed in
accordance with management's authorization, (ii) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain accountability for its assets in an appropriate amount of time,
(iii) access to its material assets will only be in accordance with
management's authorization and (iv) the reported accountability for
<PAGE>
its assets is compared with existing assets at reasonable intervals.
Article 5
Undertakings of the Company
---------------------------
The Company covenants and agrees with each Manager as follows,
(1) To prepare the Prospectus in a form approved by the Lead Manager and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable,
such earlier time as may be required by Rule 430(a)(3) under the Securities
Act; to make no further amendment or any supplement to the Registration
Statement or to the Prospectus except as required by law or permitted
herein; to advise the Lead Manager promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Lead Manager with
copies thereof; to advise the Lead Manager promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(2) To furnish promptly to the Lead Manager and to counsel for the Managers a
copy of the Registration Statement as originally filed with the Commission,
and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith.
(3) To deliver promptly to the Lead Manager such number of the following
documents as the Lead Manager shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and
(ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is required
at any time after the Effective Time in connection with the offering or
sale of the Offered Shares and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Lead Manager and, upon its request, to
prepare and furnish without charge to each manager and to any dealer in
securities as many copies as the Lead Manager may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance.
<PAGE>
(4) To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may,
in the judgment of the Company or the Lead Manager, be required by the
Securities Act or requested by the Commission.
(5) Prior to filing with the Commission any amendment to the Registration
Statement or supplement to the Prospectus pursuant to Rule 424 of the Rules
and Regulations, to furnish a copy thereof to the Lead Manager and counsel
for the Managers and not to file any amendment or supplement to which the
Lead Manager reasonably objects.
(6) As soon as practicable after the Effective Date, to make generally
available to the Company's security holders and to deliver to the Lead
Manager an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and
the Rules and Regulations (including, at the option of the Company, Rule
158).
(7) To use its best efforts to consummate the Concurrent Transactions.
(8) To use its best efforts to maintain the listing of the Offered Shares on
the Frankfurt Stock Exchange and the Nasdaq National Market.
(9) To use the net proceeds received by it from the issue and sale of the
Offered Shares in the manner specified in the Prospectus under "Use of
Proceeds".
(10) If, at any time within 6 months following the completion of the offer and
sale of the Offered Shares by the Managers, any event shall occur or
condition shall exist as a result of which it is necessary, after
consultation with the Company, in the Lead Manager's reasonable judgment to
amend or supplement the respective Offer Document in order that such Offer
Document will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if, based on the advice of counsel to the Lead Manager after
consultation with the Company it is necessary at any such time to amend or
supplement any Offer Document to comply with any applicable law, the
Company will promptly prepare an amendment or supplement which will correct
such statement or omission or effect such compliance and will take other
steps that are necessary to comply with any applicable law, rule, or
regulation.
(11) If at any time within 6 months following the completion of the offering,
the Company becomes aware of any event or circumstance that makes any Offer
Document untrue, inaccurate or misleading in any material respect, it will
promptly notify the Lead Manager to the extent legally permissible.
(12) Promptly after receipt thereof, the Company will notify the Lead Manager of
any communication received by it within 6 months following the completion
of the offering from the German Federal Supervisory Authority for
Securities Trade (Bundesaufsichtsamt fur den Wertpapierhandel), any stock
exchange, or any other written communication from any other governmental
authority or agency (including the Commission) that may reasonably be
expected to have a material adverse effect on the offering or relating to
the form, content or use of any Offer Document. To the
<PAGE>
extent permitted by applicable law, the Company will promptly provide the
Lead Manager with a copy of any such communication that is in writing.
(13) Between the date of the execution of this Agreement and the Closing Date or
the Greenshoe Closing Date, respectively (each date inclusive), prior to
issuing any public announcement in Germany or elsewhere that would
reasonably be expected to have a material adverse effect on the offering or
relating to the form, content or use of any Offer Document, the Company
will, and will cause all parties acting on its behalf, to the extent
legally permissible, to notify and consult with the Lead Manager regarding
such announcement.
(14) The Company will deliver, or cause to be delivered, to the Lead Manager,
without charge, a reasonable number of copies of each Offer Document, as
amended or supplemented from time to time as soon as possible.
(15) To use its best efforts to list and approve for trading, and once obtained,
to maintain the listing and approval for trading, of the Shares and of the
Additional Shares, if applicable, on the Frankfurt Stock Exchange and on
the Nasdaq National Market,
(16) Promptly from time to time to take such action as the Lead Manager may
reasonably request to qualify the Offered Shares for offering and sale
under the securities laws of such jurisdictions as the Lead Manager may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Offered Shares; provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction.
(17) During the period commencing on the date of the execution of this Agreement
and ending twelve months after commencement of trading in the Shares on the
SMAX segment on the Frankfurt Stock Exchange and without the prior written
consent of the Lead Manager the Company will not
(a) exercise an authorization pursuant to its Articles of Association to
increase its share capital provided that the Company may, without the
prior consent of the Lead Manager, increase its share capital against
contributions-in-kind by issuing Shares against the contribution of
interests in companies or companies if the other party receiving such
shares assumes the restrictions under this paragraph 5(17),
(b) submit a proposal for a capital increase to any meeting of the
shareholders for resolution;
(c) issue, or cause its subsidiaries, directly or indirectly, to issue,
offer, pledge, purchase, sell, or undertake to issue, offer, pledge,
or contract to purchase, securities (including options or warrants)
which carry rights to subscribe for or acquire any Shares of the
Company; grant, sell, or purchase any option or right to purchase such
securities, or undertake to grant, sell or purchase such right or
option;
(d) enter into transactions relating to derivatives or similar financial
instruments which in their economic effect are similar to the
transactions contained in
<PAGE>
subsection (1) to (3);
(e) announce any intention to do any of the foregoing or cause such
announcement.
The above shall not apply to Shares issued for employees of the Company or
any of its subsidiaries (Arbeitnehmeraktien) and to Shares issued in
connection with stock option programs existing on the Closing Date for
directors, managers and other employees or consultants of the Company or
its subsidiaries, except as disclosed in the Offering Documents.
Article 6
Selling Restrictions
--------------------
(1) The Managers agree to comply with the following selling restrictions with
respect to the sale of the Offered Shares and covenant with the Company as
follows:
(a) (i) Each Manager will not offer and sell any Offered Shares to
persons in the United Kingdom within six months after the
Closing Date, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) and in circumstances which
have not resulted and will not result in an "offer to the
public" in the United Kingdom within the meaning of the Public
Offer of Securities Regulations 1995;
(ii) Each Manager complies with all applicable provisions of the
Financial Services Act of 1986 and the Public Offer of
Securities Regulations 1995; with respect to anything done by
it in relation to the Offered Shares in, from or otherwise
involving the United Kingdom; and
(iii) Each Manager only issues and passes on, in the United Kingdom,
Offer Documents or any document received by it in connection
with the issue of the Offered Shares to a person who is of a
kind described in Article (3) of the Financial Service Act
1986 (Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom the document may otherwise
lawfully be issued or passed on.
(b) Each Manager acknowledges that no action has been or will be taken in
any jurisdiction other than Germany or the United States that would
constitute a public offering of the Offered Shares. Each Manager will
comply with all applicable securities laws and regulations in each
jurisdiction in which it purchases, offers, sells or delivers Offered
Shares or has in its possession or distributes Offer Documents or any
other offering material and each Manager must pay for the costs it
incurs to comply with the legal obligations described above.
(c) Each Manager understands that the Offered Shares have not been and
will not be registered under the Securities and Exchange Law of Japan,
and represents that it has not offered or sold, and agrees not to
offer or sell, directly or
<PAGE>
indirectly, any Offered Shares in Japan or for the account of any
resident thereof except pursuant to any exemption from the
registration requirements of the Securities and Exchange Law of Japan
and otherwise in compliance with applicable provisions of Japanese
law.
(d) The above undertakings of the Managers are several; any joint
liability (gesamtschuldnerische Haftung) of the Managers in respect of
the above is excluded.
(2) The Company covenants with the Managers as follows:
(a) Neither the Company, nor any of its Affiliates (for the purposes of
this paragraph as defined in Rule 405 under the Securities Act) has
engaged, or will engage, directly, or through an agent (other than the
Managers) in any advertising or solicitation of sales offers with
respect to the Offered Shares in any jurisdiction other than Germany
and the United States of America, which would result in an unapproved
"public offer" of the Shares;
(b) The Company will observe all applicable laws in each jurisdiction in
or from which the Managers, with the consent of the Company, engage in
sales or other efforts or are in possession of, or distribute, Offer
Documents, or any other document relating to the offer.
Article 7
Commissions and Costs
---------------------
(1) The Company agrees to pay to the Managers a commission of 5% of the Offer
Price for each Share in consideration of the obligations of the Managers
pursuant to Articles and 2. The Company may, in its sole discretion, pay
to some or all of the managers a performance fee of up to 0.5% in total of
the aggregate Offer Price for the Offered Shares.
(2) Subject to the following provisions, the Company will bear all costs and
expenses incident to the issuance, offer, sale and delivery of the Offered
Shares, including (a) the fees incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (b) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits),
any Preliminary Prospectus, the Prospectus and any amendment or supplement
to the Prospectus, all as provided in this Agreement; (c) the costs
incident to the preparation, printing and distribution of the other Offer
Documents; (d) any applicable listing or other fees of qualifying the
Shares under the securities laws of the several jurisdictions as provided
in Article 5(15) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the
Managers); (e) the fees and disbursements of counsel retained by the
Managers in connection with the Offering up to a maximum of $250,000 less
the fees and disbursements of CIBC's legal counsel incurred in connection
with the high yield offering (up to a maximum of $100,000); (f) the costs
for any environmental audits; (g) the costs and expenses of the Company
relating to investor presentations on any
<PAGE>
roadshow, including, without limitation, expenses associated with the
production of roadshow slides and graphics, fees and expenses of any
consultants engaged in connection with the roadshow presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the roadshow; and (h)
the expenses of advertising any offering of the Offered Shares made by the
Managers. Except as expressly provided in this Article 7, the Managers will
bear their own costs and expenses.
Article 8
Conditions to the Managers' Obligations with
---------------------------------------------
respect to the Main Placement; Rescission
-----------------------------------------
(1) The obligations of Lehman Brothers and the other Managers pursuant to
Articles 1(1), 1(2), 1(3), 1(4) and 1(5), Article 2 and Article 3(1), 3(2),
3(3) and 3(4) shall be subject to the following conditions (to the extent
the obligations are not to be performed prior to the date for the
occurrence of such conditions), any of which can be waived by the Lead
Manager at its sole discretion:
(a) the Shares shall have been approved for listing, subject to official
notice of issuance of the Shares, on the Nasdaq National Market and
the Frankfurt Stock Exchange shall have issued a written admission
("Zulassungsbeschluss") approving the listing of the Shares on the
Frankfurt Stock Exchange.
(b) each of the following documents has been received by the Lead Manager
on the Closing Date in the form as set out in the respective Schedules
and dated as of such date:
(i) opinion from Lovells Boesebeck Droste, German Counsel to the
Company, substantially in the form set forth in Schedule 3;
----------
(ii) opinion from King & Spalding, U.S. Counsel to the Company,
substantially in the form set forth in Schedule 4;
----------
(iii) opinion from Gardere & Wynne, LLP, U.S. Counsel to PalEx
substantially in the form set forth in Schedule 5;
----------
(iv) opinion from Edward Rhyne, Esq., General Counsel of PalEx,
substantially in the form set forth in Schedule 6;
----------
(v) opinion from Shearman & Sterling, German and U.S. Counsel to
the Managers, in a form acceptable to the Managers.
(vi) opinion from Stibbe Simont Monohan Duhot, Netherlands, Dutch
Counsel to the Company, substantially in the form set forth in
Schedule 7;
----------
<PAGE>
(vii) opinion of De Brauw Blackstone Westbroek N.V., Dutch Counsel
to the Managers, in a form acceptable to the Managers;
(viii) certification of the chief executive officer and the chief
financial officer of the Company ("Officers' Certificate"),
substantially in the form set forth in Schedule 8;
----------
(ix) a letter from PwC Deutsche Revision AG, the independent
accountants of the Company, with respect to certain financial
statements and certain financial information contained in the
Offer Documents;
(x) a letter from Arthur Andersen LLP, the independent accountants
of PalEx, with respect to certain financial statements and
certain financial information contained in the Offer
Documents;
(xi) signed lock-up letters by the directors and executive officers
and all shareholders of the IFCO Group and by certain
shareholders of PalEx that hold in the aggregate at least % of
the PalEx's issued and outstanding shares before completion of
the Merger, substantially in the form set forth in Schedule 9;
----------
(xii) extract from the Commercial Register, Articles of Association,
certificates of incumbency or such other corporate documents
that, together with powers of attorney, if any, confirm the
due authorization, execution and delivery of this Agreement;
(xiii) evidence for the issuance of the New Shares in the agreed
form.
(c) The representations and warranties given by the Company under this
Agreement are correct and accurate in all material respects, as if
they were given as of the relevant date.
(d) The Company has performed all of its obligations under this Agreement
in all material respects at the relevant dates.
(e) Execution and delivery of the Pricing Agreement by all parties thereto
on , 2000; and
(f) No Material Adverse Change (as defined in Article 11 (1) of this
Agreement) has occurred.
(g) The High Yield Offering as contemplated in the Registration Statement
under the heading "Concurrent Transactions" was duly effected and,
together with the offering of the New Shares, the Company has
received, or will receive upon completion of the offering of the New
Shares total proceeds of not less than $250 million.
(h) The Senior Credit Facility as described in the Registration Statement
under the heading "Concurrent Transactions" was duly effected.
<PAGE>
(i) The Merger has been consummated.
(j) The receipt by the Lead Manager of such other documents and
certificates as are reasonably requested by the Lead Manager or its
counsel.
(2) If any of the conditions under 1(c), (d) and (f) is not satisfied on or
before the date of the capital increase, the Managers shall, unless the
Lead Manager waives satisfaction of any of such conditions or any part of
them (as it may in its discretion and by notice to the Company do), be
released and discharged from their respective obligations hereunder in
respect of the New Shares (to the extent the New Shares and the Additional
Shares have not yet been issued).
(3) In the event that a deed of amendment of the New Shares has been executed
and that any of the foregoing conditions is not satisfied on the Closing
Date, the Managers shall remain obliged to purchase the New Shares in
accordance with this Agreement. Notwithstanding any other obligations by
the Company set forth in this Agreement including, without limitation, in
Article 5 hereof, if any of the foregoing conditions are not satisfied
after such execution of the deed of amendment, the Company within [two
weeks] (i) shall instruct the Managers to sell, or procure the sale of,
such New Shares to third parties nominated by the Company, or (ii) shall,
or shall cause a subsidiary of the Company to, repurchase such New Shares,
in each case at a price not lower than the Issue Price of the New Shares.
If the Company has not done so within [two weeks], then [Schoeller Logistic
Technologies Holding Gmbh] shall be obligated to purchase the New Shares at
the Issue Price.
(4) Notwithstanding the foregoing provisions of this Article 8,
(a) the obligations of the Company to pay to Lehman Brothers on behalf of
the Managers the costs, charges and expenses, to the extent incurred,
as provided for in Article 7(2) shall continue in full force and
effect; and
(b) any liability (including as to indemnification) as a result of any
prior breach of the provisions of this Agreement shall continue in
full force and effect.
Article 9
Conditions to the Managers' Obligations with respect to the Overallotment Option
- --------------------------------------------------------------------------------
(1) Payment of the Offer Price for the Additional Shares by the Managers shall
be subject to the conditions that as of the Greenshoe Closing Date:
(a) the representations and warranties given by the Company in Article 4
are correct and accurate as if they were given as of the Greenshoe
Closing Date;
(b) the Company has performed all of its obligations pursuant to Articles
5 and 6;
(c) in the reasonable judgment of the Lead Manager, no Material Adverse
Change as contemplated under Article 11 of this Agreement has
occurred.
<PAGE>
(2) If any of the conditions as set out in paragraph (1) above is not
satisfied, Article 8 (2)-(5) of this Agreement shall apply, mutatis
mutandis.
Article 10
Indemnification
---------------
(1) Indemnification of the Managers
The Company agrees with each Manager to indemnify each Manager (and each of
its officers, directors, employees, and each person that controls such
Manager within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act against any and all loss, claim, damage, expense
and other liabilities (Haftungsverbindlichkeiten) whatsoever vis-a-vis
third parties (including governmental agencies or other public bodies),
arising out of claims in connection with any (i) untrue statement or
alleged untrue statement of a material fact included in the Preliminary
Offer Documents or the Final Offer Documents, or (ii) the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary in order to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by any
Manager in connection with, or relating in any manner to the Offered
Shares, or the offering contemplated hereby, and which is included or part
of or referred to in any loss, claim, damage, liability or action arising
out of or based on matters covered by (i) and (ii) above, provided that the
Company shall not be liable under this clause (iii) to the extent that a
court in a final judgement determines that such loss, claim, damage or
liability resulted directly from a Manager's gross negligence or willful
conduct. The Company agrees to reimburse each Indemnified Party for any
reasonable legal or other expenses (including any applicable value added
tax) incurred by such Indemnified Party in connection with investigating,
or defending against any complaint, proceeding, action or investigation,
commenced or threatened by any governmental agency or other public body, or
any claim relating to the matters covered by the preceding sentence;
provided, however, that the Company shall not be liable in any such case to
the extent that such loss, claim, damage, expense or other liability arises
out of, or is based upon, any untrue statement or alleged untrue statement
or omission or alleged omission made in any Offer Document in reliance upon
and in conformity with the written information furnished to the Company
through any Manager specifically for inclusion therein; provided, further,
that as to the Preliminary Prospectus, this indemnity agreement shall not
inure to the benefit of any Manager, its officers or employees or any
person controlling that Manager on account of any loss, claim, damage,
expense or other liability arising from the sale of Offered Shares to any
person by that Manager if that Manager was required and failed to send or
give a copy of the Final Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Securities
Act, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Final Prospectus, unless such
failure resulted from non-compliance by the Company with Articles 5(1) and
(3).
(2) Each Manager agrees, severally and not jointly, to indemnify and hold
harmless the Company, the directors of the Company, the officers of the
Company who sign the
<PAGE>
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all loss, claim, damage, expense or
other liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, the Preliminary Prospectus or Final Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the extent such
loss, claim, damage, expense or other liabilities are based upon any untrue
statement or omission or alleged untrue statement or omission based upon
information relating to such Manager furnished to the Company in writing by
such Manager expressly for use in the Registration Statement, the
Preliminary Prospectus, the Final Prospectus or any amendments or
supplements thereto.
(3) (a) In the event a claim arises pursuant to Article 10(1) or (2), the
indemnified party shall notify the indemnifying party of such claim
and the facts constituting the basis for such claim in reasonable
detail. Failure to notify an indemnifying party shall not relieve
such indemnifying party from its obligations hereunder;
(b) In the event of a claim for indemnification hereunder resulting from
or in connection with any claim or legal proceeding by a party that is
not an indemnified party (a "Third Party Claim"), the indemnified
party shall promptly following receipt of the claim give notice to
the indemnifying party; it being understood that failure to give such
notice shall not preclude any right of an indemnified party hereunder
and paragraph 3(a) remains unaffected. Counsel to such indemnified
party shall be approved by an indemnifying party. An indemnifying
party may participate at its own expense in the defense of any such
Third Party Claim; provided, however, that counsel to an indemnifying
party shall not (except with the consent of the relevant indemnified
party) also be counsel to such indemnified party. In no event shall
an indemnifying party be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any one action
or separate but similar or related actions arising out of the same
general allegations or circumstances. An indemnifying party shall not,
without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to
any litigation or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification could be sought under Article 10
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such litigation or claim.
(c) In the case of any claim that is not a Third Party Claim, an
indemnifying party shall have 30 days, within which it may respond to
a notice of a claim for
<PAGE>
indemnification given by an indemnified party pursuant to Article
10(2)(a). If such claim is not contested, then an indemnifying party
shall as soon as practicable proceed to take whatever action is
required to carry out its indemnification obligations.
(d) The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgement for the plaintiff, the
indemnifying party agrees to indemify the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by clause (b), the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with clause (b) prior to the date of
such settlement.
Article 11
Material Adverse Change
-----------------------
(1) The Lead Manager may, if all necessary conditions are met, determine on
behalf of the Managers and upon prior consultation with the Company that,
subsequent to the date of this Agreement, any of the developments as more
specifically set out below involving a material adverse change to the
global placement of the Offered Shares (hereinafter in this Agreement
referred to as "Material Adverse Change") has occurred:
(a) There has been any Material Adverse Change, in the financial
condition, earnings, business affairs or business prospects of the
Company or the IFCO Systems Group taken as a whole that, in the Lead
Manager's judgment, makes it impracticable to market the Offered
Shares on the terms and in the manner contemplated in the Prospectus;
or
(b) there has occurred any Material Adverse Change in the international
financial markets or any outbreak of hostilities or escalation thereof
or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to
make it, in the Lead Manager's judgment, impracticable or inadvisable
to market the Offered Shares or to perform contracts for the sale of
the Offered Shares; or
(c) trading generally on either the Frankfurt Stock Exchange, the computer
trading system "XETRA," the Nasdaq National Market, or the New York
Stock Exchange has been suspended or limited or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any
<PAGE>
other governmental authority; or
(d) a general banking moratorium has been declared by the German, United
Kingdom, United States Federal or New York State authorities; or
(e) as a result of a Material Adverse Change, or an official announcement
by a competent authority of a prospective Material Adverse Change, in
German, United Kingdom or United States taxation affecting the Company
or the Shares or the transfer thereof; or
(f) imposition of additional exchange controls by Germany, any member of
the European Union or the United States.
(2) If the Lead Manager determines the occurrence of a Material Adverse Change
pursuant to this Article 11, such determination shall be without liability
of any of the Lead Manager or Managers to the Company for damages to the
Company. The apportionment of costs pursuant to Articles 7(2) and 7(4)
remain unaffected.
Article 12
Default by One or More of the Managers
--------------------------------------
(1) If one or more of the Managers shall fail at the Closing Date to purchase
the Offered Shares, that it or they are obligated to purchase pursuant to
Article and Article 2 of this Agreement, or if such failure is, in the
judgment of the Lead Manager, threatened, the Lead Manager shall have the
right, within 24 hours thereafter, to make arrangements for one or more of
the Other Managers, or any other purchasers, to purchase the Defaulted
Shares at the Offer Price and upon the terms herein set forth; if, however,
the Lead Manager have not completed such arrangements within such 24-hour
period, then the following procedure shall apply:
(a) if the number of Defaulted Shares does not exceed 10% of the total
number of Offered Shares to be purchased on such date according to
Schedule 1, each of the non-defaulting Managers shall be obligated,
----------
severally and not jointly, to purchase the full amount thereof in the
proportions that correspond to their respective underwriting
obligations of all non-defaulting Managers, or
(b) [if the number of Defaulted Shares exceeds 10% of the total number of
Offered Shares to be purchased, this Agreement shall terminate without
liability on the part of any non-defaulting Manager subject to the
last sentence of this paragraph (b). In the event that a deed of
amendment of the New Shares has been executed, Article 8 (4) and (5)
shall apply mutatis mutandis.]
(2) No such action shall relieve any defaulting Manager from liability in
respect of its default.
(3) As used herein, the term "Manager" includes any institution substituted for
a Manager under this Article 12.
<PAGE>
Article 13
Communications
--------------
Any information relating to this Agreement shall be given in writing or by
telefax to the following addresses:
1. IFCO Systems N.V.
"Riverstaete", Amsteldijk 166
1079 LH
Amsterdam, The Netherlands
Fax: (31) 20-646-0793
With a copy to:
2. IFCO Systems N.V.
c/o IFCO Europe Beteiligungs GmbH
Zugspitzstrasse 15
82049 Pullach
Germany
Fax: (49) 89-7449-1298
and:
3. IFCO Systems N.V.
PalEx, Inc.
6829 Flintlock Road
Houston, Texas 77040
Attention: General Counsel
Fax: 1-713-332-6146
4. (Lead Manager and Other Managers)
Lehman Brothers International (Europe)
Equity Capital Markets
One Broadgate
London EC2M 7HA
United Kingdom
Fax: 44-171-260-2194
The addresses stated above may be changed after giving notice to the other
persons mentioned in this Article 13.
Article 14
Statements or Communications, (S) 181 BGB
-----------------------------------------
<PAGE>
Subject to any provision in this Agreement explicitly providing otherwise, each
statement or communication of the Managers in connection with this Underwriting
Agreement including the transactions contemplated therein, shall only be valid
against the Company if made by the Lead Manager on behalf of the Managers. To
the extent necessary in connection with the transactions contemplated in this
Agreement, the Lead Manager is authorized to make or receive any statement or
declaration in the name and on behalf of the Managers, and on behalf of the
Company as required by to list the Shares on the Frankfurt Stock Exchange. The
Lead Manager is relieved from the restrictions set forth in (S) 181 BGB (German
Civil Code).
Article 15
Amendments to Agreement
-----------------------
Amendments to this Agreement may only be made in writing. This shall also apply
to amendments of this provision.
Article 16
Severability
------------
Should any provision of this Agreement be or become invalid either in whole or
in part, the other provisions of this Agreement shall remain in force. It is
understood by the parties hereto that any invalid provision shall be replaced by
a valid provision which accomplishes as far as legally possible the economic
effects of the invalid provision. This is also understood in cases of missing
contractual information.
Article 17
Miscellaneous
-------------
(1) This Agreement shall be governed by the laws of Germany. Place of
performance for the obligations hereto shall be Frankfurt am Main.
(2) The exclusive places of jurisdiction for any action or other legal
proceeding arising out of, or in connection with, this Agreement are the
courts in Frankfurt am Main.
(3) For the purposes of this Agreement, "Business Day" shall be a day on which
banks are open for business and exchanges are open for trading in Frankfurt
am Main, London and New York.
(4) This Agreement may be executed in any number of counterparts. Exchange of
counterparts duly executed by the respective party shall suffice. Each
executed copy shall be an original of one and the same agreement.
<PAGE>
IFCO SYSTEMS N.V.
By:
-----------------------------------------
SCHOELLER LOGISTIC TECHNOLOGIES HOLDING GMBH
By:
-----------------------------------------
LEAD MANAGER:
LEHMAN BROTHERS INTERNATIONAL (EUROPE), FRANKFURT AM MAIN
By:
-----------------------------------------
MANAGERS:
COMMERZBANK AKTIENGESELLSCHAFT
By:
-----------------------------------------
HSBC
By:
-----------------------------------------
CAZENOVE & CO
By:
-----------------------------------------
CIBC WORLD MARKETS
By:
-----------------------------------------
CREDIT AGRICOLE INDOSUEZ
By:
-----------------------------------------
<PAGE>
FIDELITY CAPITAL MARKETS
(Attorney-in-Fact)
Enclosures
- ----------
<PAGE>
List of Schedules
-----------------
Schedule 1: Members of the Banking Syndicate,
Number of Shares to Purchase
Schedule 2: Pricing Agreement
Schedule 3: Opinion of Lovells Boesebeck Droste
Schedule 4: Opinion of King & Spalding
Schedule 5: Opinion of Gardere & Wynne, L.L.P
Schedule 6: Opinion of Edward Rhyne, Esq.
Schedule 7: Opinion of Stibbe Simont Monahan Duhot
Schedule 8: Certification of the Chief Executive Officer
and the Chief Financial Officer of the Company
Schedule 9: Lock-up letters signed by the Company and certain shareholders of
the Company
Schedule 10: Form of deed of amendment
<PAGE>
Schedule 1
----------
Members of the Banking Syndicate
Number of Shares to Purchase
- -------------------------------------------------------------------------------
Manager Number of Shares to be
Purchased
- -------------------------------------------------------------------------------
Lehman Brothers International (Europe)
- -------------------------------------------------------------------------------
Commerzbank Aktiengesellschaft
- -------------------------------------------------------------------------------
Cazenove & Co.
- -------------------------------------------------------------------------------
CIBC World Markets PLC
- -------------------------------------------------------------------------------
HSBC Investment Bank plc
- -------------------------------------------------------------------------------
Credit Agricole Indosuez
- -------------------------------------------------------------------------------
Fidelity Capital Markets
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Total:
- -------------------------------------------------------------------------------
<PAGE>
Schedule 2
----------
PRICING AGREEMENT
among
IFCO Systems N.V.
("Company")
and
Lehman Brothers International (Europe)
(the "Lead Manager")
and
the other Managers listed in Schedule 1
(the Lead Manager and the other Managers listed in,
together the "Managers")
March , 2000
<PAGE>
PREAMBLE
In an underwriting agreement dated March , 2000 (the "Underwriting Agreement"),
the Company and the Managers have agreed that (i) the Lead Manager (in its own
name and for the account of the Managers) will subscribe 13,000,000 New Shares
and offer and sell the New Shares to the Managers, (ii) the Company will, upon
election of the Lead Manager, issue and sell to the Managers up to 1,950,000
Company Greenshoe Shares, and (iii) the Managers will severally purchase and
offer the Offered Shares in Germany in a public offering to retail and
institutional investors in the United States in a public offering, and in the
rest of the world (excluding Germany and the United States of America) in a
private placement to institutional investors. Capitalized terms used and not
defined herein are used herein as defined in the Underwriting Agreement.
Article 1
Definitions
Capitalized terms used and not otherwise defined herein are used herein as
defined in the Underwriting Agreement.
Article 2
Offer Price
The Offer Price for the Offered Shares shall be euro _____ for each ordinary
share, with nominal value of euro 2.00 per share, of the Company.
Article 3
Consent of the Corporate Bodies of the Company
The Company represents and warrants that the necessary corporate bodies of the
Company have agreed to the aforementioned Offer Price.
London, March , 2000
IFCO SYSTEMS N.V.
By:
-----------------------------------------
<PAGE>
SCHOELLER LOGISTIC TECHNOLOGIES HOLDING GMBH
By:
-----------------------------------------
LEAD MANAGER:
LEHMAN BROTHERS INTERNATIONAL (EUROPE), FRANKFURT AM MAIN
By:
-----------------------------------------
MANAGERS:
COMMERZBANK AKTIENGESELLSCHAFT
By:
-----------------------------------------
HSBC
By:
-----------------------------------------
CAZENOVE & CO
By:
-----------------------------------------
CIBC WORLD MARKETS
By:
-----------------------------------------
CREDIT AGRICOLE INDOSUEZ
By:
-----------------------------------------
FIDELITY CAPITAL MARKETS
<PAGE>
By:
-----------------------------------------
<PAGE>
Schedule 3
----------
Opinion of Lovells Boesebeck Droste
(i) assuming each of the Underwriting Agreement and the Pricing
Agreement has been duly authorized, executed and delivered by the
Company under Dutch law, each of the Underwriting Agreement and the
Pricing Agreement is a valid and binding agreement under the laws of
the Federal Republic of Germany, enforceable in accordance with its
terms;
(ii) the execution and delivery by the Company of, and the
performance of its obligations under, each of the Underwriting
Agreement and the Pricing Agreement does not conflict with or result
in any violation of any applicable laws, rules or regulations of the
Federal Republic of Germany and will not result in a breach of or
default under any agreement or other instrument binding upon the
Company or any of its German Subsidiaries (as defined below) that is
material to the Company and its German Subsidiaries, taken as a whole;
(iii) the performance of the Company's obligations under the
transactions contemplated by the Prospectus under the caption
"Concurrent Transactions" (the "Concurrent Transactions") does not
conflict with or result in any violation of any applicable laws, rules
or regulations of the Federal Republic of Germany or any agreement or
other instrument binding upon the Company or any of its German
Subsidiaries that is material to the Company and its German
Subsidiaries, taken as a whole;
(iv) the issuance and sale of the Shares to the Underwriters
pursuant to the Underwriting Agreement, and the performance by the
Company of its obligations under each of the Underwriting Agreement,
the Pricing Agreement and the Concurrent Transactions do not require
any consent, approval, authorization, registration or qualification of
or with any governmental authority of the Federal Republic of Germany,
except such as have been obtained or effected in Germany or such as
may be required by German laws, rules and regulations in connection
with the issuance, offer and sale of the Shares;
(v) the German subsidiaries of the Company, including IFCOEurope
Beteiligungs GmbH, MTS Okologistik GmbH and Schoeller International
Logistics Beteiligungsgesellschaft mbH (which will be renamed IFCO
International Network Beteiligungsgesellschaft mbH) (the "German
Subsidiaries") have been duly incorporated and are validly existing as
legal entities in the form of limited liability companies under the
laws of the Federal Republic of Germany;
(vi) the German Subsidiaries have the corporate power to own
their respective properties and to conduct any business as set forth
in the Prospectus.
(vii) to such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the any of the
<PAGE>
German Subsidiaries is a party or to which any of the properties of
the German Subsidiaries is subject that are required to be described
in the Prospectus;
(viii) the German Prospectus (except for financial statements
and schedules and other financial and statistical data included
therein as to which such counsel need express no opinion), at the time
approved by the Frankfurt Stock Exchange, appeared on its face to be
appropriately responsive in all material respects to the requirements
set forth under applicable German law and the rules and regulations of
the Frankfurt Stock Exchange, and there is no material difference
between the information contained in the German Prospectus and the
information contained in the U.S. Prospectus;
(ix) [such counsel knows of no information that causes them to
believe that the German Prospectus (except, in each case, the
financial statements and other financial and statistical data included
therein, as to which such counsel need express no opinion), as of the
date thereof or hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;]
(x) the statements in the Prospectus under the captions
"Concurrent Transactions", "Certain Relationships and Related
Transactions" insofar as such statements purport to summarize certain
provisions of legal documents, fairly summarize such provisions in all
material respects;
(xi) the execution of each of the Underwriting Agreement and the
Pricing Agreement and the completion of the sale of the Shares to or
for the respective accounts of the Managers in the manner contemplated
in each of the Underwriting Agreement and the Pricing Agreement, will
not result in any liability in the Federal Republic of Germany for the
Underwriters for any capital duty, stamp duty or other issuance or
transfer taxes or duties, provided that the payment of expenses and
commissions due pursuant to each of the Underwriting Agreement and the
Pricing Agreement shall be subject to applicable German tax laws, in
particular with respect to value-added tax.
The letter of Lovells Boesebeck Droste shall be rendered to the
Managers at the request of the Company and shall so state therein.
<PAGE>
Schedule 4 - 6
--------------
Opinion of King & Spalding/Gardere & Wynn/Edward Rhyne
(i) the execution and delivery by the Company of, and the
performance of its obligations under, each of the Underwriting
Agreement and the Pricing Agreement will not result in any violation
of any applicable federal law of the United States or law of the State
of New York or the rules and regulations of the Commission under the
Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(ii) IFCO-U.S., L.L.C. ("IFCO U.S.") has been duly formed and
is validly existing as a limited liability company in good standing
under the laws of the State of Delaware.
(iii) the merger of PalEx, Inc. ("PalEx") with and into Silver
Oak Acquisition Corp. ("Silver Oak"), a wholly owned subsidiary of the
Company (the "Merger"), was duly authorized by PalEx and Silver Oak,
has been consummated, and all consents, approvals, authorizations,
notifications or orders of, or filings with, any court or governmental
agency or body of the United States of America, the State of Delaware
of [New York] [Texas] as a condition to the effectiveness of the
Merger have been obtained or made and are in full force and effect;
(iv) Silver Oak has been duly incorporated and is validly
existing as a corporation under the laws of the State of Delaware;
(v) as described in the Final Prospectus under the caption
"Concurrent Transactions", the offering by the Company of % Senior
Subordinated Notes Due 2010 (the "Notes"), the guarantee by PalEx or
Silver Oak, as the case may be, of the Company's obligations under the
Notes, the execution by PalEx or Silver Oak, as the case may be, of a
new senior credit facility (the "New Senior Credit Facility"), and the
Company's guarantee of PalEx's obligations under the New Senior Credit
Facility (collectively, the "Concurrent Transactions") have been duly
authorized, to the extent a party thereto, by PalEx, Silver Oak and
the Company, have been consummated, and all consents, approvals,
authorizations, notifications or orders of, or filings with, any court
or governmental agency or body of the United States of America, the
State of Delaware or the State of [New York] [Texas] to permit the
Concurrent Transactions have been obtained or made and are in full
force and effect;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, each of the
Underwriting Agreement and the Pricing Agreement does not (a) assuming
the compliance with all applicable state securities or Blue Sky laws,
violate any statute, rule or regulation of the United States of
America or the State of [New York] [Texas] applicable to the Company
or any of its properties or assets, (b) violate any provision of the
certificate of incorporation or by-laws of PalEx and Silver Oak, (c)
to such counsel's knowledge, result in a breach of or
<PAGE>
default under any agreement or other instrument to which the Company
is a party or to which any of its properties or assets are subject and
that is material to the Company, taken as a whole or, in the case of
PalEx and Silver Oak, any document or agreement filed by PalEx and
Silver Oak with the Commission to which it is a party or to which any
of its properties or assets is subject, or the agreements or
instruments in connection with the Merger and the Concurrent
Transactions or (d) violate, to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court of
the United States of America or the State of [New York] [Texas] having
jurisdiction over the Company or PalEx or Silver Oak or their
respective properties or assets that is specifically addressed to and
binding upon the Company or PalEx or Silver Oak or their respective
properties or assets;
(vii) the performance by the Company of its obligations in
connection with the Merger and the Concurrent Transactions does not
conflict with or result in a violation of the certificate of
incorporation or bylaws of PalEx and Silver Oak or the provisions of
any published statute, rule or regulation of the State of New York or
the General Corporation Law of the State of Delaware, or, to such
counsel's knowledge, any judgment, order or decree of any government
body, agency or court of the United States of America or the State of
[New York] [Texas] having jurisdiction over the Company, PalEx or
Silver Oak;
(viii) the issuance and sale of the New Shares to the
Underwriters pursuant to the Underwriting Agreement, and the
performance by the Company of its obligations under each of the
Underwriting Agreement and the Pricing Agreement and the transactions
described therein and the Concurrent Transactions, do not require any
consent, approval, authorization, registration or qualification of or
with any governmental authority of the United States or the State of
New York, except such as have been obtained or effected under the
Securities Act and the Exchange Act (provided that such counsel need
express no opinion as to any consent, approval, authorization,
registration or qualification under state securities or Blue Sky laws)
in connection with the issuance, offer and sale of the New Shares;
(ix) the statements in the Prospectus under the captions
"Concurrent Transactions", "Certain Relationships and Related
Transactions" and the statements in the Prospectus regarding the
Merger and the Concurrent Transactions, insofar as such statements
purport to summarize certain provisions, such provisions in all
material respects, and the statements made in the Prospectus under the
caption "Taxation -- United States Taxation", insofar as such
statements purport to summarize certain federal income tax laws and
regulations of the United States, fairly summarize the matters
described therein in all material respects;
(x) to such counsel's knowledge, there are (a) no legal or
governmental proceedings pending or threatened to which the Company or
PalEx or Silver Oak is a party or to which any of the properties of
the Company or PalEx is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described
or (b)
<PAGE>
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(xi) the Company is not, and after giving effect to the
offering and sale of the New Shares and the application of the
proceeds thereof as described in the Prospectus will not be, (i) an
"investment company" within the meaning of the U.S. Investment Company
Act of 1940, as amended, or (ii) a "passive foreign investment
company" within the meaning of the United States Internal Revenue Code
of 1986, as amended; and
(xii) the Registration Statement, at the time it became
effective, the Final Prospectus as of the date thereof, and the F-4
Registration Statement as filed with the Securities and Exchange
Commission on February 2, 2000 and the proxy statement used in
connection with the Merger (the "F-4 Registration Statement and Proxy
Statement")(in each case except for financial statements and schedules
and other financial and statistical data included therein as to which
such counsel need express no opinion), comply as to form in all
material respects to the requirements of the Securities Act and the
rules and regulations;
In addition, such counsel shall state that it has participated in
discussions with officers and other representatives of the Company and
PalEx, counsel for the Managers and representatives of the independent
public accountants of the Company and PalEx at which the preparation
and contents of the Registration Statement and Prospectus and the F-4
Registration Statement and Proxy Statement and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness
of any of the statements in the Registration Statement or the
Prospectus or the F-4 Registration Statement and Proxy Statement, and
has not made any independent check or verification thereof, on the
basis of the foregoing no facts have come to its attention that lead
it to believe that the Registration Statement and the F-4 Registration
Statement at the time it became effective or the Prospectus or Proxy
Statement as of the date thereof contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that such counsel need express no opinion or
statement on the financial statements, schedules or other financial or
statistical data included in the Registration Statement or Prospectus
or the F-4 Registration Statement and Proxy Statement.
The letter of [King & Spalding/Gardere & Wynne/Ed Rhyne] shall be
rendered to the Managers at the request of the Company and shall so
state therein.
<PAGE>
Schedule 7
----------
Opinion of Stibbe Simont Monahan Duhot
(i) the Company has been duly incorporated and is validly
existing as a legal entity in the form of a public company with
limited liability ("naamloze vennootschap") under the laws of the
Netherlands.
(ii) the Company has the corporate power to execute and
deliver the Underwriting Agreement and the Pricing Agreement and to
perform its obligations thereunder.
(iii) each of the Underwriting Agreement and the Pricing
Agreement has been duly authorized by all requisite corporate action
on the part of, and has been duly executed and delivered by, the
Company;
(iv) the Company has the corporate power to own its
properties and to conduct its business as set forth in the German and
U.S. Prospectuses.
(v) the Company's authorized share capital consists of
100,000,000 ordinary shares and 50,000,000 preference shares, each
with a nominal value of euro 2 per share and conforms to the
description thereof in the Final Prospectus under the heading
"Description of IFCO Systems Share Capital";
(vi) the Shares outstanding prior to the offering of the New
Shares have been duly authorized and have been validly issued by the
Company in accordance with the law of The Netherlands and are fully
paid and non-assessable;
(vii) the New Shares have been duly authorized and are validly
issued by the Company in accordance with the law of The Netherlands
and are fully paid and non-assessable and are not subject to
preemptive or similar rights under such law;
(viii) the New Shares are free of rights of pledge or rights of
usufruct;
(ix) it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of the Underwriting
Agreement and the Pricing Agreement that any document be filed,
recorded or enrolled with any government department or other authority
in The Netherlands;
(x) the choice of the internal laws of the Federal Republic
of Germany as the law governing the Underwriting Agreement and the
Pricing Agreement is valid and binding under the laws of The
Netherlands, except (i) to the extent that any term of the
Underwriting Agreement and the Pricing Agreement or any provision of
the internal laws of the Federal Republic of Germany applicable to the
Underwriting Agreement and the Pricing Agreement is manifestly
incompatible with the public policy (ordre public) of
<PAGE>
The Netherlands, and except (ii) that a Dutch Court may give effect to
mandatory rules of the laws of another jurisdiction with which the
situation has a close connection, if and insofar as, under the laws of
that other jurisdiction those rules must be applied, whatever the
chosen law;
(xi) the execution and delivery by the Company of each of the
Underwriting Agreement and the Pricing Agreement and the performance
by the Company of its obligations thereunder does not conflict with or
result in a violation of the articles of association of the Company or
the provisions of any published law, rule or regulation of general
application of The Netherlands;
(xii) the performance by the Company of its obligations under
the transactions contemplated by the Prospectus under the caption
"Concurrent Transactions" (the "Concurrent Transactions") does not
conflict with or result in a violation of the articles of association
of the Company or the provisions of any published law, rule or
regulation of general application of The Netherlands;
(xiii) no approval, authorization or other action by or filing
with any governmental authority is required in connection with the
execution by the Company of each of the Underwriting Agreement and the
Pricing Agreement and the performance by the Company of its
obligations thereunder and the consummation of the Concurrent
Transactions, [except for (i) notice requirements to the Netherlands
Central Bank pursuant to the Act on Foreign Financial Relations ("West
Financiele Betrekkingen Buitenland") and regulations promulgated
thereunder; (ii) publication and/or notice requirements, to the extent
applicable, pursuant to the Act on Disclosure of Holdings in Listed
Companies ("Wet melding zeggenschap in ter beurze genoteerde
vennootschappen 1996") and (iii) registration requirements in respect
of Shares with the competent Trade Register;] however non-observance
of these notice and registration requirements does not render the
Underwriting Agreement and the Pricing Agreement void, nor does it
affect the legality, validity or enforceability of the Underwriting
Agreement and the Pricing Agreement, the obligations of the Company
thereunder, the validity of the Shares or the consummation of the
Concurrent Transactions;
(xiv) no stamp duties ("zegelrechten") or similar tax or duty
(other than a 1% capital duty on the issue price of the Shares) is or
will be payable in The Netherlands in connection with the offering of
the Shares or in respect of the execution of the Underwriting
Agreement and the Pricing Agreement;
(xv) the merger of PalEx and Silver Oak Acquisition Corp., a
wholly owned subsidiary of the Company (the "Merger") has been duly
authorized by the Company, has been properly consummated, and all
consents, approvals, authorizations, notifications or orders of, or
filings with, any court or governmental agency or body in The
Netherlands in connection with the Merger have been obtained and are
in full force and effect;
(xvi) the Concurrent Transactions to which the Company is a
party have been duly authorized by the Company and all consents,
approvals,
<PAGE>
authorizations, notifications or orders of, or filings with, any court
or governmental agency or body in The Netherlands in connection with
those transactions have been obtained and are in full force and
effect;
(xvii) the Registration Statement has been duly executed and
delivered by and on behalf of the Company; and
(xviii) the statements in the Final Prospectus under the caption
"Dividend Policy", "Management", "Description of IFCO Systems Share
Capital", "Share Certificates and Transfer", "Exchange Controls and
Other Limitations Affecting Security Holders", Enforceability of Civil
Liabilities" and "Taxation -- Netherlands Taxation" -- insofar as such
statements constitute a summary of the Company's articles of
association or provisions of Dutch law -- fairly summarize the matters
described therein, in all material respects.
The opinion of Stibbe Simont Monohan Duhot shall be rendered to
the Managers at the request of the Company and shall so state therein.
<PAGE>
Schedule 8
----------
Officers' Certificate
[To come]
<PAGE>
Schedule 9
----------
PALEX/IFCO MERGER
AND
IFCO SYSTEMS N.V. IPO
FORM OF LOCK UP LETTERS
-----------------------
VERSION 1: lock up of IFCO shares owned at the time of the IPO for 6 months
- ---------
after the IPO, to be signed by
. holders of IFCO option holders, including:
. GE Capital,
. Mr. Marcy,
. recipients of the 1,000,000 options that can be granted under
the Merger Agreement, and
. recipients of the 1,000,000 options that the Schoellers may
distribute
VERSION 2: lock up of a portion of PalEx shares currently owned through the
- ---------
completion of the Merger and a portion of IFCO shares owned at the
time of the IPO for 6 months after the IPO, to be signed by
. shareholders of PalEx
VERSION 3: lock up of all PalEx shares currently owned through the completion
- ---------
of the Merger and the number of IFCO shares owned at the time of the
IPO for 6 months after the IPO, to be signed by
. shareholders of PalEx
VERSION 4: lock up of all PalEx shares currently owned through the completion
- ---------
of the Merger and the number of IFCO shares owned at the time of the
IPO for 12 months after the IPO, to be signed by
. IFCO Systems directors and officers after the merger - as listed on
page 85
of the preliminary prospectus
VERSION 5: SLTH lock up letter to be signed by
- ---------
. Christoph Schoeller,
. Martin A Schoeller,
. Andrea Schoeller,
. Alexander Schoeller and
. Leopold Schoeller
VERSION 6: GE Erste lock up letter
- ---------
<PAGE>
VERSION 1
Lock-up Letter
--------------
________________, 2000
Lehman Brothers International (Europe)
Commerzbank Aktiengesellschaft
Cazenove & Co.
CIBC World Markets PLC
HSBC Investment Bank plc
Credit Agricole Indosuez
Fidelity Capital Markets
a division of National Financial Services Corporation
c/o Lehman Brothers International (Europe)
1 Broadgate
London EC2M 7HA
Dear Sirs and Mesdames:
The undersigned understands that Lehman Brothers International (Europe)
("Lehman Brothers") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with IFCO Systems N.V., a public limited company
incorporated in The Netherlands (the "Company") providing for the public
offering (the "Public Offering") by the several underwriters referred to
therein, including Lehman Brothers (the "Underwriters"), of 13,000,000 ordinary
shares, par value Euro 2.00 per share (the "Shares") of the Company (the
"Ordinary Shares").
Concurrent with the Public Offering, PalEx, Inc. ("PalEx") will merge into
the Company (the "Merger"). In the Merger, holders of shares of common stock,
par value $0.01 per share, of PalEx (the "PalEx Common Shares") will receive
merger consideration consisting of cash and/or Ordinary Shares in exchange for
PalEx Common Shares owned by such holder.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Lehman Brothers on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering, (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any Ordinary Shares or any securities convertible
into or exercisable or exchangeable for Ordinary Shares or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of Ordinary Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Ordinary Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) transactions relating to Ordinary Shares or
other securities, other than put options, acquired in open market transactions
after the completion of the Public Offering, (b) the exercise of stock options
or warrants existing on the date of the Public Offering in
<PAGE>
respect of Ordinary Shares, and (c) Ordinary Shares issued for employees of the
Company.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-----------------------
(Name)
-----------------------
(Address)
<PAGE>
VERSION 2
Lock-up Letter
--------------
, 2000
----------
Lehman Brothers International (Europe)
Commerzbank Aktiengesellschaft
Cazenove & Co.
CIBC World Markets PLC
HSBC Investment Bank plc
Credit Agricole Indosuez
Fidelity Capital Markets
a division of National Financial Services Corporation
c/o Lehman Brothers International (Europe)
1 Broadgate
London EC2M 7HA
Dear Sirs and Mesdames:
The undersigned understands that Lehman Brothers International (Europe)
("Lehman Brothers") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with IFCO Systems N.V., a public limited company
incorporated in The Netherlands (the "Company") providing for the public
offering (the "Public Offering") by the several underwriters referred to
therein, including Lehman Brothers (the "Underwriters"), of 13,000,000 ordinary
shares, par value Euro 2.00 per share (the "Shares") of the Company (the
"Ordinary Shares").
Concurrent with the Public Offering, PalEx, Inc. ("PalEx") will merge into
the Company (the "Merger"). In the Merger, holders of shares of common stock,
par value $0.01 per share, of PalEx (the "PalEx Common Shares") will receive
merger consideration consisting of cash and/or Ordinary Shares in exchange for
PalEx Common Shares owned by such holder.
The undersigned currently owns _________________ PalEx Common Shares and
options to acquire ________________ PalEx Common Shares (the "PalEx Options").
The undersigned is electing to exchange ________________ of such owned PalEx
Common Shares for Ordinary Shares in the Merger.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Lehman Brothers on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending upon the completion of the Merger, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any PalEx
Common Shares or any securities convertible into or exercisable or exchangeable
for PalEx Common Shares or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of PalEx Common Shares, whether any such
<PAGE>
transaction described in clause (1) or (2) above is to be settled by delivery of
PalEx Common Shares or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (a) the tendering of PalEx Common Shares
in the Merger, and (b) ___________________ PalEx Common Shares, which is
equivalent to ___% of all PalEx Common Shares beneficially owned by the
undersigned on the date hereof (the "Free PalEx Shares").
To further induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Lehman
Brothers on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 180 days after the date of the final
prospectus relating to the Public Offering , (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, ___% of the Ordinary
Shares acquired in the Merger - or any of the Ordinary Shares acquired upon the
exercise of options into which PalEx Options are converted (collectively, the
"Restricted Shares") or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Restricted Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Ordinary Shares or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) Ordinary Shares received in exchange for the Free PalEx Shares tendered
in the Merger, (b) transactions relating to Ordinary Shares or other securities,
other than put options, acquired in open market transactions after the
completion of the Public Offering, (c) the exercise of stock options or warrants
existing on the date of the Public Offering in respect of Ordinary Shares, (d)
Ordinary Shares issued for employees of the Company, and (e) Ordinary Shares
acquired by the undersigned in the Public Offering (i.e., Friends and Family
List shares).
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-----------------------
(Name)
-----------------------
(Address)
<PAGE>
VERSION 3
Lock-up Letter
--------------
, 2000
----------------
Lehman Brothers International (Europe)
Commerzbank Aktiengesellschaft
Cazenove & Co.
CIBC World Markets PLC
HSBC Investment Bank plc
Credit Agricole Indosuez
Fidelity Capital Markets
a division of National Financial Services Corporation
c/o Lehman Brothers International (Europe)
1 Broadgate
London EC2M 7HA
Dear Sirs and Mesdames:
The undersigned understands that Lehman Brothers International (Europe)
("Lehman Brothers") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with IFCO Systems N.V., a public limited company
incorporated in The Netherlands (the "Company") providing for the public
offering (the "Public Offering") by the several underwriters referred to
therein, including Lehman Brothers (the "Underwriters"), of 13,000,000 ordinary
shares, par value Euro 2.00 per share (the "Shares") of the Company (the
"Ordinary Shares").
Concurrent with the Public Offering, PalEx, Inc. ("PalEx") will merge into
the Company (the "Merger"). In the Merger, holders of shares of common stock,
par value $0.01 per share, of PalEx (the "PalEx Common Shares") will receive
merger consideration consisting of cash and/or Ordinary Shares in exchange for
PalEx Common Shares owned by such holder.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Lehman Brothers on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending upon the completion of the Merger, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any PalEx
Common Shares or any securities convertible into or exercisable or exchangeable
for PalEx Common Shares or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of PalEx Common Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of PalEx Common Shares or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to the tendering of PalEx Common Shares in the Merger.
To further induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees
<PAGE>
that, without the prior written consent of Lehman Brothers on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 180 days after the date of the final prospectus relating to the Public
Offering, (1) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Ordinary Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Ordinary Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) transactions relating to Ordinary Shares or
other securities, other than put options, acquired in open market transactions
after the completion of the Public Offering, (b) the exercise of stock options
or warrants existing on the date of the Public Offering in respect of Ordinary
Shares, and (c) Ordinary Shares issued for employees of the Company.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
---------------------
(Name)
----------------------
(Address)
<PAGE>
VERSION 4
Lock-up Letter
--------------
, 2000
----------------
Lehman Brothers International (Europe)
Commerzbank Aktiengesellschaft
Cazenove & Co.
CIBC World Markets PLC
HSBC Investment Bank plc
Credit Agricole Indosuez
Fidelity Capital Markets
a division of National Financial Services Corporation
c/o Lehman Brothers International (Europe)
1 Broadgate
London EC2M 7HA
Dear Sirs and Mesdames:
The undersigned understands that Lehman Brothers International (Europe)
("Lehman Brothers") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with IFCO Systems N.V., a public limited company
incorporated in The Netherlands (the "Company") providing for the public
offering (the "Public Offering") by the several underwriters referred to
therein, including Lehman Brothers (the "Underwriters"), of 13,000,000 ordinary
shares, par value Euro 2.00 per share (the "Shares") of the Company (the
"Ordinary Shares").
Concurrent with the Public Offering, PalEx, Inc. ("PalEx") will merge into
the Company (the "Merger"). In the Merger, holders of shares of common stock,
par value $0.01 per share, of PalEx (the "PalEx Common Shares") will receive
merger consideration consisting of cash and/or Ordinary Shares in exchange for
PalEx Common Shares owned by such holder.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Lehman Brothers on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending upon the completion of the Merger, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any PalEx
Common Shares or any securities convertible into or exercisable or exchangeable
for PalEx Common Shares or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of PalEx Common Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of PalEx Common Shares or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to the tendering of PalEx Common Shares in the Merger.
To further induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees
<PAGE>
that, without the prior written consent of Lehman Brothers on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 365 days after the date of the final prospectus relating to the Public
Offering, (1) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Ordinary Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Ordinary Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) transactions relating to Ordinary Shares or
other securities, other than put options, acquired in open market transactions
after the completion of the Public Offering, (b) the exercise of stock options
or warrants existing on the date of the Public Offering in respect of Ordinary
Shares, and (c) Ordinary Shares issued for employees of the Company.
For the avoidance of doubt, the restrictions set forth above shall also
apply to transactions relating to any options exercisable for any PalEx Common
Shares or Ordinary Shares and the PalEx Common Shares and Ordinary Shares
underlying such options, other than the exercise of such options in accordance
with clause (b) above.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-----------------------
(Name)
-----------------------
(Address)
<PAGE>
VERSION 5
Lock-up Letter
--------------
, 2000
----------------
Lehman Brothers International (Europe)
Commerzbank Aktiengesellschaft
Cazenove & Co.
CIBC World Markets PLC
HSBC Investment Bank plc
Credit Agricole Indosuez
Fidelity Capital Markets
a division of National Financial Services Corporation
c/o Lehman Brothers International (Europe)
1 Broadgate
London EC2M 7HA
Dear Sirs and Mesdames:
The undersigned understands that Lehman Brothers International (Europe)
("Lehman Brothers") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with IFCO Systems N.V., a public limited company
incorporated in The Netherlands (the "Company") providing for the public
offering (the "Public Offering") by the several underwriters referred to
therein, including Lehman Brothers (the "Underwriters"), of 13,000,000 ordinary
shares, par value Euro 2.00 per share (the "Shares") of the Company (the
"Ordinary Shares").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Lehman Brothers on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 365 days after the date of the final prospectus relating
to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Ordinary Shares or any
securities convertible into or exercisable or exchangeable for Ordinary Shares
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of Ordinary
Shares, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Ordinary Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) transactions relating
to Ordinary Shares or other securities, other than put options, acquired by the
Undersigned in open market transactions after the completion of the Public
Offering, (b) the exercise by Christoph Schoeller or Martin A Schoeller [add
other Schoellers, if any, holding options on the date of the Public Offering] of
stock options or warrants existing on the date of the Public Offering in respect
of Ordinary Shares, and (c) the pledging of [up to 20% of Ordinary Shares owned]
by Schoeller Holding to secure [the refinancing by [ ] of up to $[ ] million of
the Company's outstanding debt and the obtaining from [ ] of up to $[ ] million
new financing for the Company]. [carve out to come re. 1 million options the
Schoellers propose to grant to third parties, such carve out to
<PAGE>
be subject to grantees signing a lock up letter of Version 1] In addition, the
undersigned agrees that, without the prior written consent of Lehman Brothers on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 365 days after the date of the Prospectus, make any
demand for or exercise any right with respect to, the registration of any
Ordinary Shares or any security convertible into or exercisable or exchangeable
for Ordinary Shares .
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-----------------------
(Name)
------------------------
(Address)
<PAGE>
VERSION 6
Lock-up Letter
--------------
, 2000
--------------
Lehman Brothers International (Europe)
Commerzbank Aktiengesellschaft
Cazenove & Co.
CIBC World Markets PLC
HSBC Investment Bank plc
Credit Agricole Indosuez
Fidelity Capital Markets
a division of National Financial Services Corporation
c/o Lehman Brothers International (Europe)
1 Broadgate
London EC2M 7HA
Dear Sirs and Mesdames:
The undersigned understands that Lehman Brothers International (Europe)
("Lehman Brothers") proposes to enter into an Underwriting Agreement (the
"Underwriting Agreement") with IFCO Systems N.V., a public limited company
incorporated in The Netherlands (the "Company") providing for the public
offering (the "Public Offering") by the several underwriters referred to
therein, including Lehman Brothers (the "Underwriters"), of 13,000,000 ordinary
shares, par value Euro 2.00 per share (the "Shares") of the Company (the
"Ordinary Shares").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Lehman Brothers on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 365 days after the date of the final prospectus relating
to the Public Offering, (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any Ordinary Shares or any securities convertible
into or exercisable or exchangeable for Ordinary Shares or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of Ordinary Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Ordinary Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to transactions relating to Ordinary Shares or other
securities, other than put options, acquired in open market transactions after
the completion of the Public Offering.
In addition, the undersigned agrees that, without the prior written consent
of Lehman Brothers on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 365 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any Ordinary Shares or any security convertible into or
exercisable or exchangeable for Ordinary Shares.
<PAGE>
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
[GE Erste]
-----------------------
By: (Name)
-----------------------
(Address)
<PAGE>
EXHIBIT 5.1
February 29, 2000
IFCO Systems N.V.
Rivierstaete
Amsteldijk 166
1079 LH AMSTERDAM
The Netherlands
Ladies and Gentlemen:
We have acted as legal counsel in the Netherlands to IFCO Systems N.V., a
Netherlands company (the "Company"), in connection with the filing by the
Company under the Securities Act of 1933, as amended, of a registration
statement on Form F-1, as amended the date hereof (the "Registration Statement")
with the United States Securities and Exchange Commission. Pursuant to the
Registration Statement, 13,000,000 ordinary shares of the Company (the "Offer
Shares") will be sold to the public in the framework of an initial public
offering by the Company. The offering of the ordinary shares will be made
pursuant to an Underwriting Agreement among the Company, Lehman Brothers
International for itself and as representative of the several Managers named in
Schedule 1 thereof to be dated March 3, 2000 (the "Underwriting Agreement").
In rendering this opinion we have examined and relied upon the following
documents:
(1) a draft of the Underwriting Agreement filed with the Registration
Statement;
(2) the Registration Statement;
(3) an excerpt dated the date hereof of the registration of the Company in the
Trade Register of the Chamber of Commerce of Amsterdam, The Netherlands
(the "Excerpt");
(4) a copy of the Deed of Incorporation of the Company (the "Deed of
Incorporation"), executed on March 31, 1999 which includes the articles of
association (statuten) of the Company in force on the date hereof (the
"Articles");
(5) the proposed amendment of the Articles as included in a draft dated
February 22, 2000;
<PAGE>
(6) a company certificate of even date hereof attached hereto as Annex 1 (the
-------
"Company Certificate");
and such other documents and such treaties, laws, rules, regulations, and the
like, as we have deemed necessary as a basis for the opinions hereinafter
expressed.
We have assumed:
(i) the genuineness of all signatures;
(ii) the authenticity of all the agreements, certificates, and other documents
submitted to us as originals;
(iii) the conformity to the originals of all documents submitted to us as
copies;
(iv) that the document referred to under (1) above will be duly and validly
signed and executed by all parties thereto prior to the issuance of the
Offer Shares, substantially in the form as examined by us as draft;
(v) that a ministerial declaration of non-objection will be received with
respect to the document referred to under (5) above and that such document
will be duly and validly executed through a notarial deed prior to the
issuance of the Offer Shares, substantially in the form as examined by us
as draft;
(vi) that the resolution to issue the Offer Shares shall have been validly
passed prior to the issuance of the Offer Shares; and
(vii) that the contents of the Excerpt and the Company Certificate are true and
complete as of the date hereof.
Based on the foregoing and subject to any factual matters or documents not
disclosed to us in the course of our investigation, and subject to the
qualifications and limitations stated hereafter, we are of the opinion that:
A. The Company has been duly incorporated and is validly existing as a
"naamloze vennootschap" (company with limited liability) under the laws of
-----------------------
The Netherlands.
B. The Offer Shares, to be sold as contemplated in the Registration Statement,
when duly issued and delivered in accordance with the provisions of the
Underwriting Agreement and Netherlands law, against payment therefor as
provided in the
2
<PAGE>
Underwriting Agreement, will be duly and validly issued, fully paid and
non-assessable.
In rendering the opinions expressed herein, we have, with your approval, relied
without independent investigation as to all matters governed by or involving
conclusions under German law, upon the opinion (including the qualifications,
assumptions and limitations expressed therein) of Lovells Boesebeck Droste,
German counsel to the Company, of even date herewith.
We express no opinion on any law other than the law of The Netherlands as it
currently stands and has been interpreted in published case law of the courts of
The Netherlands as per the date hereof. We express no opinion on any laws of the
European Communities (insofar as not implemented in The Netherlands in statutes
or other regulations of general application).
This opinion is strictly limited to the matters stated herein and may not be
read as extending by implication to any matters not specifically referred to.
Nothing in this opinion should be taken as expressing an opinion in respect of
any representations or warranties, or other information, or any other document
examined in connection with this opinion except as expressly confirmed herein.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Legal Matters" contained
in the prospectus which is included in the Registration Statement.
Yours sincerely,
/s/ Stibbe Simont Monahan Duhot P.C.
Stibbe Simont Monahan Duhot P.C.
3
<PAGE>
[LETTERHEAD OF LOVELLS]
Stibbe Simont Monahan Duhot
350 Park Avenue, 28th Floor
New York, New York 10022 29 February 2000
USA
Ladies and Gentlemen:
We have acted as German counsel for IFCO Systems N.V., a stock corporation
organised under the laws of the Netherlands (the "Company") in connection with
the intended offering and sale (the "Offering") of ordinary shares of the
Company pursuant to a draft underwriting agreement dated 25 February 2000 (the
"Underwriting Agreement"). You have requested this opinion in connection with
the filing by IFCO Systems of a registration statement (the "Registration
Statement") on Form F-1 under the Securities Act of 1933 with the Securities and
Exchange Commission. The Registration Statement is being filed in connection
with the consummation of the transactions contemplated by the Underwriting
Agreement.
1. In arriving at the opinions expressed below, we have reviewed a draft
dated 25 February 2000 of the Underwriting Agreement.
2. In our examination of the draft Underwriting Agreement, we have
assumed that the draft Underwriting Agreement will be executed by the
parties. We have also assumed that each of the then parties to the
Underwriting Agreement is duly incorporated, validly existing and in
good standing as a corporation under the laws of its respective
jurisdiction, will have taken all steps necessary to execute the
Underwriting Agreement under the laws of its respective jurisdiction
and will have duly executed and delivered, with all necessary power
and authority (corporate and otherwise), the Underwriting Agreement.
As to matters of fact, we have relied solely upon the document we have
examined.
3. Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that the
Underwriting Agreement, if duly signed by the parties thereto, will
create a valid and binding agreement under the laws of the Federal
Republic of Germany, enforceable in accordance with its terms.
The foregoing opinions are strictly limited to the laws of the Federal Republic
of Germany and are subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally. Our total liability in connection with
these opinions shall not in any case exceed DM 20.000.000,00. This opinion
letter shall be governed by the laws of the Federal Republic of Germany.
<PAGE>
[LOGO OF LOVELLS] -2- 25 February 2000
This opinion letter speaks only as of the date hereof. We do not assume, and we
expressly disclaim, any responsibility to advise you of any change of law or
fact that may occur after the date of this opinion letter even though such
change may affect the legal analysis, a legal conclusion or any other matter set
forth in or relating to this opinion letter.
We hereby consent to the use of this opinion as an exhibit to your opinion that
will be filed as an exhibit to the Registration Statement. This opinion letter
is not to be used, circulated, quoted or otherwise referred to for any other
purpose or by another.
/s/ Dr. Johannes Meinel
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Dr. Johannes Meinel
